Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Never let a good fiasco go to waste: why and how the governance of European football should be reformed after the demise of the ‘SuperLeague’ - By Stephen Weatherill

Editor’s note: Stephen Weatherill is the Jacques Delors Professor of European Law at Oxford University. He also serves as Deputy Director for European Law in the Institute of European and Comparative Law, and is a Fellow of Somerville College. This blog appeared first on eulawanalysis.blogspot.com and is reproduced here with the agreement of the author. 

 


The crumbling of the ‘SuperLeague’ is a source of joy to many football fans, but the very fact that such an idea could be advanced reveals something troublingly weak about the internal governance of football in Europe – UEFA’s most of all – and about the inadequacies of legal regulation practised by the EU and/ or by states. This note explains why a SuperLeague is difficult to stop under the current pattern of legal regulation and why accordingly reform is required in order to defend the European model of sport with more muscularity. More...



New Digital Masterclass - Mastering the FIFA Transfer System - 29-30 April

The mercato, or transfer window, is for some the most exciting time in the life of a football fan. During this narrow period each summer and winter (for the Europeans), fantastic football teams are made or taken apart. What is less often known, or grasped is that behind the breaking news of the latest move to or from your favourite club lies a complex web of transnational rules, institutions and practices.

Our new intensive two-day Masterclass aims to provide a comprehensive understanding of the FIFA Regulations on the Status and Transfer of Players (RSTP) to a small group of dedicated legal professionals who have the ambition to advise football clubs, represent players or join football governing bodies. The course combines theoretical insights on FIFA’s regulation of the transfer market with practical know-how of the actual operation of the RSTP distilled by hands-on practitioners.

Download the full Programme and register HERE.


The Team:

  • Dr Antoine Duval is a senior researcher at the Asser Institute and the head of the Asser International Sports Law Centre. He has widely published and lectured on transnational sports law, sports arbitration and the interaction between EU law and sport. He is an avid football fan and football player and looks forward to walking you through the intricacies of the FIFA transfer system.

  • Carol Couse is a Partner in the sports team at Mills & Reeve LLP , with extensive in-house and in private practice experience of dealing with sports regulatory matters, whether contentious or non-contentious.  She has advised on many multi million pound international football transfer agreements, playing contracts and image rights agreements on behalf clubs, players and agents.
  • Jacques Blondin is an Italian lawyer, who joined FIFA inundefined 2015, working for the Disciplinary Department. In 2019, he was appointed Head of FIFA TMS (now called FIFA Regulatory Enforcement) where he is responsible, among other things, for ensuring compliance in international transfers within the FIFA Transfer Matching System.
  • Oskar van Maren joined FIFA as a Legal Counsel in December 2017, forming part of the Knowledge Management Hub, a department created in September 2020. Previously, he worked for FIFA’s Players' Status Department. Between April 2014 and March 2017, he worked as a Junior Researcher at the T.M.C. Asser Instituut. He holds an LL.M in European law from Leiden University (The Netherlands).
  • Rhys Lenarduzzi is currently a research intern at the Asser International Sports Law Centre, where he focuses in particular on the transnational regulation of football. Prior to this, he acquired over 5 years of experience as a sports agent and consultant, at times representing over 50 professional athletes around the world from various sports, though predominantly football.




(A)Political Games? Ubiquitous Nationalism and the IOC’s Hypocrisy

Editor’s note: Thomas Terraz is a L.LM. candidate in the European Law programme at Utrecht University and a former intern of the Asser International Sports Law Centre

 

1.     Sport Nationalism is Politics

Despite all efforts, the Olympic Games has been and will be immersed in politics. Attempts to shield the Games from social and political realities are almost sure to miss their mark and potentially risk being disproportionate. Moreover, history has laid bare the shortcomings of the attempts to create a sanitized and impenetrable bubble around the Games. The first blog of this series examined the idea of the Games as a sanitized space and dived into the history of political neutrality within the Olympic Movement to unravel the irony that while the IOC aims to keep the Olympic Games ‘clean’ of any politics within its ‘sacred enclosure’, the IOC and the Games itself are largely enveloped in politics. Politics seep into the cracks of this ‘sanitized’ space through: (1) public protests (and their suppression by authoritarian regimes hosting the Games), (2) athletes who use their public image to take a political stand, (3) the IOC who takes decisions on recognizing national Olympic Committees (NOCs) and awarding the Games to countries,[1] and (4) states that use the Games for geo-political posturing.[2] With this background in mind, the aim now is to illustrate the disparity between the IOC’s stance on political neutrality when it concerns athlete protest versus sport nationalism, which also is a form of politics.

As was mentioned in part one of this series, the very first explicit mention of politics in the Olympic Charter was in its 1946 version and aimed to combat ‘the nationalization of sports for political aims’ by preventing ‘a national exultation of success achieved rather than the realization of the common and harmonious objective which is the essential Olympic law’ (emphasis added). This sentiment was further echoed some years later by Avery Brundage (IOC President (1952-1972)) when he declared: ‘The Games are not, and must not become, a contest between nations, which would be entirely contrary to the spirit of the Olympic Movement and would surely lead to disaster’.[3] Regardless of this vision to prevent sport nationalism engulfing the Games and its codification in the Olympic Charter, the current reality paints quite a different picture. One simply has to look at the mass obsession with medal tables during the Olympic Games and its amplification not only by the media but even by members of the Olympic Movement.[4] This is further exacerbated when the achievements of athletes are used for domestic political gain[5] or when they are used to glorify a nation’s prowess on the global stage or to stir nationalism within a populace[6]. Sport nationalism is politics. Arguably, even the worship of national imagery during the Games from the opening ceremony to the medal ceremonies cannot be depoliticized.[7] In many ways, the IOC has turned a blind eye to the politics rooted in these expressions of sport nationalism and instead has focused its energy to sterilize its Olympic spaces and stifle political expression from athletes. One of the ways the IOC has ignored sport nationalism is through its tacit acceptance of medal tables although they are expressly banned by the Olympic Charter.

At this point, the rules restricting athletes’ political protest and those concerning sport nationalism, particularly in terms of medal tables, will be scrutinized in order to highlight the enforcement gap between the two. More...


“Sport Sex” before the European Court of Human Rights - Caster Semenya v. Switzerland - By Michele Krech

Editor's note: Michele Krech is a JSD Candidate and SSHRC Doctoral Fellow at NYU School of Law. She was retained as a consultant by counsel for Caster Semenya in the proceedings before the Court of Arbitration for Sport discussed above. She also contributed to two reports mentioned in this blog post: the Report of UN High Commissioner for Human Rights,  Intersection of race and gender discrimination in sport (June 2020); and the Human Rights Watch Report, “They’re Chasing Us Away from Sport”: Human Rights Violations in Sex Testing of Elite Women Athletes (December 2020).

This blog was first published by the Völkerrechtsblog and is republished here with authorization. Michele Krech will be joining our next Zoom In webinar on 31 March to discuss the next steps in the Caster Semenya case.



Sport is the field par excellence in which discrimination
against intersex people has been made most visible.

Commissioner for Human Rights, Council of Europe
Issue Paper: Human rights and intersex people (2015)


Olympic and world champion athlete Caster Semenya is asking the European Court of Human Rights (ECtHR) to make sure all women athletes are “allowed to run free, for once and for all”. Semenya brings her application against Switzerland, which has allowed a private sport association and a private sport court to decide – with only the most minimal appellate review by a national judicial authority – what it takes for women, legally and socially identified as such all their lives, to count as women in the context of athletics. I consider how Semenya’s application might bring human rights, sex, and sport into conversation in ways not yet seen in a judicial forum. More...







New Event - Zoom In - Caster Semenya v. International Association of Athletics Federations - 31 March - 16.00-17.30 CET

On Wednesday 31 March 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), is organising its fourth Zoom In webinar on the recent developments arising from the decision of the Swiss Federal Tribunal (SFT) in the case Caster Semenya v. International Association of Athletics Federations (now World Athletics), delivered on 25 August 2020.


Background
The participation of athletes with biological sex differences to international competitions is one of the most controversial issues in transnational sports law. In particular, since 2019, Caster Semenya, an Olympic champion from South-Africa has been challenging the World Athletics eligibility rules for Athletes with Differences of Sex Development (DSD Regulation), which would currently bar her from accessing international competitions (such as the Tokyo Olympics) unless she accepts to undergo medical treatment aimed at reducing her testosterone levels. In April 2019, the Court of Arbitration for Sport rejected her challenge against the DSD Regulation in a lengthy award. In response, Caster Semenya and the South African Athletics Federation filed an application to set aside the award before the Swiss Federal Tribunal. In August 2020, the SFT released its decision rejecting Semenya’s challenge of the award (for an extensive commentary of the ruling see Marjolaine Viret’s article on the Asser International Sports Law Blog).

Recently, on 25 February 2021, Caster Semenya announced her decision to lodge an application at the European Court of Human Rights (ECtHR) against Switzerland on the basis of this judgment. In this context, we thought it important to organise a Zoom In webinar around the decision of the SFT and the pending case before the ECtHR. Indeed, should the ECtHR accept the case, it will be in a position to provide a definitive assessment of the human rights compatibility of the DSD Regulation. Moreover, this decision could have important consequences on the role played by human rights in the review of the private regulations and decisions of international sports governing bodies.


Speakers


Participation is free, register HERE.

New Video! Zoom In on World Anti-Doping Agency v. Russian Anti-Doping Agency - 25 February

Dear readers,

If you missed it (or wish to re-watch it), the video of our third Zoom In webinar from 25 February on the CAS award in the World Anti-Doping Agency v. Russian Anti-Doping Agency case is available on the YouTube channel of the Asser Institute:



Stay tuned and watch this space, the announcement for the next Zoom In webinar, which will take place on 31 March, is coming soon!

A Reflection on Recent Human Rights Efforts of National Football Associations - By Daniela Heerdt (Tilburg University)

Editor's Note: Daniela Heerdt is a PhD researcher at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She published a number of articles on mega-sporting events and human rights, in the International Sports Law Journal, Tilburg Law Review, and the Netherlands Quarterly of Human Rights.

 

In the past couple of years, the Fédération Internationale de Football Association (FIFA) made remarkable steps towards embedding human rights into their practices and policies. These developments have been discussed at length and in detail in this blog and elsewhere, but a short overview at this point is necessary to set the scene. Arguably, most changes were sparked by John Ruggie’s report from 2016, in which he articulated a set of concrete recommendations for FIFA “on what it means for FIFA to embed respect for human rights across its global operations”, using the UN Guiding Principles on Business and Human Rights (UNGPs) as authoritative standard.[i] As a result, in May 2017, FIFA published a human rights policy, in which it commits to respecting human rights in accordance with the UNGPs, identifies its salient human rights risks, and acknowledges the potential adverse impacts it can have on human rights in general and human rights of people belonging to specific groups. In October 2017, it adopted new bidding regulations requiring bidders to develop a human rights strategy and conduct an independent human rights risk assessment as part of their bid. In March 2017, FIFA also created a Human Rights Advisory Board, which regularly evaluated FIFA’s human rights progress and made recommendations on how FIFA should address human rights issues linked to its activities. The mandate of the Advisory Board expired at the end of last year and the future of this body is unknown at this point.

While some of these steps can be directly connected to the recommendations in the Ruggie report, other recommendations have largely been ignored. One example of the latter and focus of this blog post is the issue of embedding human rights at the level of national football associations. It outlines recent steps taken by the German football association “Deutscher Fussball-Bund” (DFB) and the Dutch football association “Koninklijke Nederlandse Voetbalbond” (KNVB) in relation to human rights, and explores to what extent these steps can be regarded as proactive moves by those associations or rather spillover effects from FIFA’s human rights efforts. More...

New Event! Zoom In on World Anti-Doping Agency v. Russian Anti-Doping Agency - 25 February - 16:00-17:30 CET

On Thursday 25 February 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), organizes a Zoom In webinar on the recent award of the Court of Arbitration for Sport (CAS) in the case World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency (RUSADA), delivered on 17 December 2020.


Background
In its 186 pages decision the CAS concluded that RUSADA was non-compliant with the World Anti-Doping Code (WADC) in connection with its failure to procure the delivery of the authentic LIMS data (Laboratory Information Management System) and underlying analytical data of the former Moscow Laboratory to WADA. However, the CAS panel did not endorse the entire range of measures sought by WADA to sanction this non-compliance. It also reduced the time frame of their application from four to two years. The award has been subjected to a lot of public attention and criticisms, and some have expressed the view that Russia benefited from a lenient treatment.   

This edition of our Zoom in webinars will focus on assessing the impact of the award on the world anti-doping system. More specifically, we will touch upon the decision’s effect on the capacity of WADA to police institutionalized doping systems put in place by certain states, the ruling’s regard for the rights of athletes (Russian or not), and its effect on the credibility of the world anti-doping system in the eyes of the general public.


To discuss the case with us, we are very happy to welcome the following speakers:


Participation is free, register HERE.

Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 5: Rethinking Redistribution in Football - By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi recently completed a Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

 

As one may have gathered from the series thus far, the question that comes out of this endeavour for me, is whether redistribution in football would be better divorced from the transfer system?

In my introductory blog I point towards historical, cultural, and of course the legal explanations as to why redistribution was established, and why it might be held onto despite obvious flaws. In my second blog, I point out how the training compensation and solidarity mechanisms work in practice through an African case study, as well as the hindrance caused and the Eurocentricity of the regulations. The key take-away from my third blog on the non-application of training compensation in women’s football might be that training compensation should apply to both men’s and women’s football, or neither. The sweeping generalisation that men’s and women’s football are different as justification for the non-application to the women’s game is not palatable, given inter alia the difference between the richest and poorest clubs in men’s football. Nor is it palatable that the training compensation mechanism is justified in men’s football to incentivise training, yet not in women’s football.

In the fourth blog of this series, I raise concerns that the establishment of the Clearing House prolongs the arrival of a preferable alternative system. The feature of this final blog is to consider alternatives to the current systems. This endeavour is manifestly two-fold; firstly, are there alternatives? Secondly, are they better?  More...


Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 4: The New FIFA Clearing House – An improvement to FIFA’s training compensation and solidarity mechanisms? - By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi recently completed a Bachelor of Law (LL.B) and a Bachelor of Philosophy (B.Phil.) at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

In September 2018, the Football Stakeholders Committee endorsed the idea of a Clearing House that was subsequently approved in October of the same year by the FIFA Council. A tender process commenced in July 2019 for bidders to propose jurisdiction, operation and establishment. Whilst many questions go unanswered, it is clear that the Clearing House will be aimed at closing the significant gap between what is owed and what is actually paid, in respect to training compensation and solidarity payments. The Clearing House will have other functions, perhaps in regard to agents’ fees and other transfer related business, though those other operations are for another blog. It will hence act as an intermediary of sorts, receiving funds from a signing and therefore owing club (“new” club) and then moving that money on to training clubs. Whilst separate to FIFA, to what extent is unclear.

I have landed at the position of it being important to include a section in this blog series on the soon to commence Clearing House, given it appears to be FIFA’s (perhaps main) attempt to improve the training compensation and solidarity mechanisms. As will be expanded upon below, I fear it will create more issues than it will solve. Perhaps one should remain patient and optimistic until it is in operation, and one should be charitable in that there will undoubtedly be teething problems. However, it is of course not just the function of the Clearing House that is of interest, but also what moving forward with the project of the Clearing House represents and leaves unaddressed, namely, the issues I have identified in this blog series. More...

Asser International Sports Law Blog | The O’Bannon Case: The end of the US college sport’s amateurism model? By Zygimantas Juska

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The O’Bannon Case: The end of the US college sport’s amateurism model? By Zygimantas Juska

On 8 August, U.S. District Judge Claudia Wilken ruled in favour of former UCLA basketball player O'Bannon and 19 others, declaring that NCAA's longstanding refusal to compensate athletes for the use of their name, image and likenesses (NILs) violates US antitrust laws. In particular, the long-held amateurism justification promoted by the NCAA was deemed unconvincing.

On 14 November, the NCAA has appealed the judgment, claiming that federal judge erred in law by not applying a 1984 Supreme Court ruling. One week later, the NCAA received support from leading antitrust professors who are challenging the Judge Wilken’s reasoning in an amicus curiae. They are concerned that the judgment may jeopardize the proper regulation of college athletics. The professors argued that if Wilken’s judgment is upheld, it

would substantially expand the power of the federal courts to alter organizational rules that serve important social and academic interests…This approach expands the ‘less restrictive alternative prong’ of the antitrust rule of reason well beyond any appropriate boundaries and would install the judiciary as a regulatory agency for collegiate athletics”.   


Background 

The plaintiff, Edward O’Bannon, competed for the University of California, Los Angeles (UCLA) during the 1991-1995 seasons. In the 1994-95 season, O’Bannon was elected MVP of the UCLA national championship basketball team and also received the John R. Wooden award as the nation’s most outstanding men’s basketball player.  

In 2009, O’Bannon saw his likeness in a video game authorized by the NCAA for which he provided no consent and received no compensation. In July 2009, he filed a class action lawsuit on behalf of current and former NCAA student-athletes against the NCAA, alleging that college football and men's basketball players should be allowed to sell their NIL to the NCAA.

The defendant, the NCAA, is an unincorporated organization consisting of colleges, universities, and conferences. The NCAA rules impose strict limits on the amount of compensation that cannot exceed the value of a full “grant-in-aid” consisting of tuition and fees, room and board and required books.[1] As such, the NCAA prohibits current student-athletes from receiving any compensation from their schools for the use of their NIL, suggesting that the whole college sport relies upon “amateurism”. To participate in NCAA athletics, however, the NCAA requires each student-athlete to sign Student-Athlete Statement (Form 08-3a), which grants the NCAA the right to use the athlete’s NIL to “promote NCAA championships or other NCAA events, activities or programs.”  


Arguments of the parties

Plaintiff  

O’Bannon’s complaint alleged that the NCAA’s college sports amateurism rules harmed student-athletes as it constituted a price-fixing agreement among FBS football and Division I basketball schools. Under antitrust law[1], O’Bannon asserted that the violation unreasonably restrains trade in the market by foreclosing current and former NCAA men’s basketball and Division I-A football (FBS) players from receiving compensation for the use of NIL. The NCAA accomplishes this unreasonable restraint of trade in part by requiring all student-athletes to sign Form 08-3a. Mr O’Bannon asserts that the Form 08-3a is used by the NCAA to mislead and compel uninformed student-athletes to forfeit their rights not to be compensated for their NIL.  

Claimant

 The NCAA put forth a number of procompetitive justifications for amateurism:

  • compensating athletes would negatively impact competitive balance among FBS football and Division I basketball teams;  

  • paying players would adversely affect the integration of academics and athletics on campuses. In practice, athletes would spend more time doing sports than studying;

  • restricting compensation increases output of its product and if lifted, schools might disregard Division I;

  • preservation of amateurism is essential to its core identity, as it protect the popularity of sport. The claimant cites the example of the Olympics, which are deemed popular because athletes are not compensated.  


The decision 

On 8 August 2014, the Court found that the NCAA is a cartel that exercises market power, fixes prices, and restrains competition. The NCAA, therefore, must allow schools to redistribute to athletes some of the money it generates by licensing an athlete’s name, image and likeness to companies. In her injunction, Judge Wilken issued that the NCAA is restrained from prohibiting an athlete from getting deferred compensation of $5,000 or less per student-athlete per year. The money is to be paid in a trust fund that could be tapped after college. Furthermore, the NCAA cannot cap the value of a scholarship below the full cost of attending college (which is few thousands more than the current scholarship).[2]

The Court rejected each of the NCAA’s pro-competitive justifications to defend amateurism. Wilken ruled that the NCAA failed to consistently adhere to a single definition of amateurism. In short, Judge Wilken put the longstanding model of amateurism (the core principle of college sport since 1906) at risk in a few sentences: 

The historical record that the NCAA cites as evidence of its longstanding commitment to amateurism is unpersuasive. This record reveals that the NCAA has revised its rules governing student-athlete compensation numerous times over the years, sometimes in significant and contradictory ways. Rather than evincing the association’s adherence to a set of core principles, this history documents how malleable the NCAA’s definition of amateurism has been since its founding.” 

Additionally, the Court also held that people would not stop watching college sports if players are paid.[3] The fans care about watching football, but not whether athletes are paid or not.

 

Analysis 

This ruling is a “game-changer” because the Court jeopardizes the long-standing fundamental principle of amateurism on which the whole economic and social system of the NCAA lies. Wilken had no use for the amateurism defence to justify the restraints on paying players. It is particularly ironic that the NCAA seems to be a victim of its own success. No one would have imagined at the time when the NCAA came to existence in 1906, that college sport would grow into such a big business.

Ironically, again, the NCAA was also a victim of its own witness. Daniel Rubinfeld, a prominent antitrust expert, claimed that NCAA operates as a “joint venture which imposes restraints” on trade. This confession is definitely reflected in the Court’s subsequent finding, suggesting that Mr Rubinfeld never denied that the NCAA restricts competition among its members for recruitment.[4] To make matters even more complicated, Mr Rubinfeld had called the NCAA a “cartel” in a prior microeconomics textbook: “The NCAA restricts competition in a number of important ways. To reduce bargaining power by student-athletes, the NCAA creates and enforces rules regarding eligibility and terms of compensation.” Nevertheless, he still considered that the anti-competitive restraint was lawful because it serves procompetitive purposes.

Despite the appearances, however, the situation is not as bad as it looks for the NCAA. It is true that student-athletes will probably be compensated in some form or another. Nevertheless, the cap of $5000 to the compensation could have been higher and it is to be paid to a trust fund. Furthermore, the NCAA can continue preventing student-athletes from endorsing commercial products or selling their NIL rights individually, as the NCAA and its schools have the right to protect them against “commercial exploitation”. Hence, it is likely that Judge Wilken did not intend to blow up the entire NCAA’s system, but to change it gradually. From the point of view of the NCAA, it would have been way worse if the Court had issued an injunction to enter in a collective bargaining agreements with student-athletes.[5] Nevertheless, the ruling opens a space for broader pervasive changes to college athletics in the future.

 

Appeal 

On 14 November, the NCAA appealed the judgment. The NCAA argues that a federal judge erred in law by not applying a 1984 Supreme Court ruling that the NCAA believes protects amateurism in college sports. The Supreme Court held that “athletes must not be paid” in order to preserve the character and quality of the product. Furthermore, the NCAA argued that other lower district courts have upheld the 1984 ruling.

In support of the NCAA’s appeal, fifteen antitrust-law professors filed an amicus brief. They argue that U.S. District Judge Claudia Wilken “misapplied” the “less restrictive alternative prong” of the rule of reason when she found that the NCAA violated antitrust law. The professors added that precedents show that the Court overstepped its bounds. Furthermore, allowing antitrust courts to “impose their own views” could leave other organizations open to suit. They also argued that following Judge Wilkin’s reasoning in the O’Bannon case, a court could even “require compensation for Little League baseball players” at whatever level that seems ‘fair’ by a district judge.

 

What’s next? 

If the NCAA loses the appeal, the injunction will take effect the next recruiting cycle; it will affect athletes entering school after 1 July 2016. In such scenario, the ruling will open more space for competition between the schools, in the form of the design of compensation packages. It seems that the volcano did not erupt yet. However, the volcano might finally and irremediably erupt if the next legal battle against the NCAA is successful: the Jeffrey Kessler case. He seeks to remove all scholarship limitations imposed by the NCAA and not only be tied to the NIL.  Kessler aims to introduce a free market in college sport with players receiving salaries in addition to scholarships. In short, he wants to turn recruits into free agents.  An outcome in his favour would change US College Sport forever. I will keep you posted!



[1] O’Bannon v  NCAA, No. 09-3329  CW, at 19  (N.D. Cal. Aug. 8, 2014)

[2] Sherman Antitrust Act, 15 U.S.C.A.  §1 (2011): “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.”

[3] Cost of Attendance at Buffalo, for example, is $36,483 while Athletic Scholarship is $33,566. See http://www.ubbullrun.com/2014/6/25/5840110/full-cost-of-attendance-scholarships-what-does-it-mean-at-buffalo

[4] O’Bannon v NCAA, at 28-30.

[5] O’Bannon v NCAA, at 22.

[6] For example, in NBA collective bargaining agreement is the contract between the NBA (the commissioner and the 30 team owners) and the NBA Players Association that dictates the rules of player contracts, trades, revenue distribution, the NBA Draft, and the salary cap, among other things.

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