United States: Court Denies Class Cert. In NCAA Antitrust Suit

Last Updated: April 10 2016
Article by Bruce D. Sokler and Farrah Short

The NCAA scored a victory last week with the denial of class certification in an antitrust suit challenging the association's former ban on multiyear scholarships (the "One Year Rule") and its cap on scholarships (the "GIA Cap"). Plaintiff had alleged that those rules constituted a concerted effort by the NCAA and its member schools to thwart competition. This decision from the United States Southern District of Indiana in John Rock v. NCAA, Case No. 1:12-cv-01019, may, as a practical matter, end this particular case. Perhaps anticipating this outcome, Rock's counsel has already brought other players onto the playing field in similar suits filed against the NCAA, including Deppe v. NCAA, Case No. 1:16-cv-00528 (S.D. Ind.), filed in early March. With respect to the Core Issue class Rock sought, the district court found a lack of ascertainability to reject the class. With respect to the injunction, the court found that all the class certification elements had been met, but that Rock himself was not a class representative plaintiff, since he had signed a professional contract before even initiating litigation.

Background

Plaintiff Rock filed his initial complaint in 2012, and a third amended complaint in 2015. In Rock's challenge of the NCAA rules, he contended that a "labor market" exists of NCAA Division I football student athletes. In Rock's purported market, the athletes compete for positions on the Division I teams, and the schools compete to recruit the athletes with "pay" consisting of scholarships, academic programs, access to training facilities, and coaching instruction. Rock further argued that the labor market is subdivided into a Football Bowl Subdivision ("FBS") and a Football Championship Subdivision ("FCS"). According to Rock, the NCAA's scholarship limits artificially decrease the supply of scholarships and consequentially artificially increase the relative demand for them by student athletes.

The One Year Rule and the GIA Cap were adopted by the NCAA in 1973 in an effort to reduce the cost of student athletics. However, prior to the adoption of the rules, many of the schools already had self-imposed limits on the duration and number of scholarships. In 2011, the NCAA repealed the One Year Rule. While Rock argued that the repeal resulted in an increase in the number of multiyear scholarships awarded, in establishing the record on the class certification question, the NCAA pointed to several studies suggesting that the repeal has had minimal impact and that in fact the schools still award very few multiyear scholarships.

Rock alleged that he had been recruited by FBS schools and FCS schools, but that he did not receive any FBS scholarship offers because of the challenged rules, thus suffering an antitrust injury. In contrast, the NCAA argued that he had not been "recruited" — as the term is defined in the NCAA rules — by any FBS school. Rock ultimately chose a school based on an indication that he would receive a GIA scholarship for five years. But after three years, Rock claimed that he was "run off" by the new head coach, who wanted to give his GIA scholarship to another athlete. The NCAA countered that Rock had become ineligible for the last year of the scholarship. The lost GIA-year cost Rock $33,130.

Decision on Class Certification

Rock asked the court to certify two classes — an "Injunctive Relief Class" and a "Core Issues Class" — with him as the class representative for both. Named parties may sue on behalf of a class if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the class; (4) the representative parties will fairly and adequately protect the interests of the class.

Core Issues Class

Rock seeks to certify a "Core Issues Class" of:

All individuals who, from December 17, 2007 to the present, have been classified under NCAA rules as an "initial counter" (during their first fall term on campus or in spring term prior to their first fall term on campus) on an [sic] NCAA Division I football team, and

  1. were recruited by at least one school that is a member of the NCAA's Division I Football Bowl Subdivision ("FBS") (at the time of their recruitment or during their period of NCAA athletics eligibility), and
  2. did not receive their initial year's athletics-related grant-in-aid for the full duration of their undergraduate education or five (5) years, whichever is shorter.

Excluded from the proposed class definition are individuals whose athletics-related GIAs were reduced, cancelled or not renewed due to one of the reasons enumerated in specified NCAA rules (the "Carve Out").

The district court held that the Core Issues class is not appropriate because it is not ascertainable.  Under Seventh Circuit precedent, a class is not ascertainable when it is "defined too vaguely" or "defined by subjective criteria."  First, the district court noted that Rock did not present any class-wide evidence to demonstrate how a student athlete can be identified as "recruited," nor did Rock attempt to define "recruitment" under the NCAA rules. The district court opined that Rock "likely conced[ed] that he personally does not meet the NCAA definition [of recruited]." Rock proposed several proxy tests for "recruited," but the district court found that those tests were still too vague. Furthermore, Plaintiff's expert testified that being "recruited" meant that a school showed "economic interest" in an athlete and took "some sort of tangible action." The district court found these criteria to be subjective. Second, the district court likewise found that Rock presented no class-wide evidence to demonstrate how a student-athlete can be objectively identified as having lost a scholarship for reasons other than Carve Out. Indeed, the district court reasoned that it could not even "rely on Rock's affidavits to determine whether he is a class member, [and thus could not] reasonably certify a class of hundreds or even thousands of potential class members."

The district court still went on to address the remaining criteria for class certification. It found that if the Core Issues Class was ascertainable, that Plaintiff had satisfied the numerosity requirement — that the class be "so numerous that joinder of all members is impracticable" — based on Rock's estimates of affected athletes. The district court also found that Rock satisfied the "commonality" requirement — that there be "questions of law or fact common to the class."  Specifically, the common issues include: whether the One Year Rule is a horizontal restraint in violation of the Sherman Act, whether there is a relevant antitrust market, whether the NCAA and its members improperly monopolize Division I-A football, and whether there is an antitrust injury. The district court, however, found that the typicality requirement was not met — that the claims of the representative party be "typical of the claims or defenses of the class." Here, Rock's antitrust claims were substantively similar to those of the class, but he faces several defenses that are unique to him. In particular, the district court has already noted that Rock might not even meet his own definition of "recruited." Further, the district court found that the adequacy requirement was not met — that the class representative be able to "fairly and adequately protect the interests of the class." The district court stated that "if Rock fails to meet his own Core Issues class definition [since he may not meet the definition of "recruited"], he is an inadequate class representative."

The district court further held that Rock did not satisfy the requirements of predominance and superiority — that the "questions of law or fact common to the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Rock contended that common issues predominate because "all members of the Core Issues Class were impacted by the restraints because all members actually lost or had their scholarships reduced." Plaintiff's expert asserted that "but for the restraints... all participants in the FBS Recruitment Submarket... would have received a multiyear Division I GIA." The NCAA countered that before the challenged rules were enacted, schools varied in the term and number of scholarships awarded, and that many schools still declined to offer multiyear awards after the repeal of the One Year Rule.  Thus, the district court found that individual inquiries will predominate over common ones.

Injunctive Relief Class

On the purported Injunctive Relief Class, the NCAA did not argue that the class certification requirements were not met. Instead, the NCAA argued that Rock does not have standing to represent the class.

Rock seeks to certify an "Injunctive Relief Class" of:

All individuals who, from December 17, 2007 to the present, have been classified under NCAA rules as an "initial counter" (during their first fall term on campus or in the spring term prior to their first fall term on campus) on an [sic] NCAA Division I football team.

Standing requires a showing of (1) injury in fact, (2) causation, and (3) redressability. The NCAA argued that Rock ended his NCAA eligibility when he signed a contract with a professional football team in 2012, prior to filing this suit. The district court agreed, holding that Rock does not have standing because he had lost his NCAA ineligibility prior to filing the case.  The district court did leave open that had his status changed from eligible to ineligible after filing the case, standing might not have been an issue.

Conclusion

In addition to the similar and recently filed Deppe case, yet another similar case was filed in November 2015. Pugh v. NCAA, case no. 1:15-cv-01747 (S.D. Ind.). Plaintiff Pugh from that case filed a Conditional Motion to Intervene as a class representative in Rock, likely anticipating the deficiencies in Rock's class certification motion. In its decision on class certification, the district court also held that Pugh's intervention would not "save" the Core Issues Class.  Recognizing both undue prejudice and delay, the district court found Pugh's motion for permissive intervention to be unwarranted. While class certification has not yet been decided in the Pugh case, there may also be flaws in Pugh's ability to be a class representative in his own case as he too is no longer NCAA eligible.

It remains to be seen whether the Deppe case filed in March will overcome the Rock (and likely Pugh) class certification problems, but thus far the NCAA's blitz defense has been successful in protecting these scholarship rules from being assessed on the merits.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Bruce D. Sokler
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