Alston Lawyer Seeks to Claw Back Scholastic Cash for NCAA Athletes
The Supreme Court’s June 2021 ruling in NCAA v. Alston paved the way for colleges to pay their athletes up to $5,980 in academic achievement awards, the same dollar amount the NCAA permits colleges to pay for athletic achievement awards.
But what about college athletes who played before 2021—should they have been paid for academic achievements as well?
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Enter the latest antitrust lawsuit against the NCAA.
On Tuesday, Carolina Panthers running back Chuba Hubbard and former Auburn track and field star Keira McCarrell sued the NCAA and the Power Five conferences in an Oakland federal court. They seek for their case to be certified as a class action on behalf of current and former DI athletes who 1) played “at any time” between April 1, 2019, and a future date when the case would be certified as a class and 2) would have met their college’s requirements for receiving an academic award.
Ole Miss became the first college to pay academic achievement awards in November 2021. Relying on Alston, Ole Miss announced it would pay all athletes who maintained their academic eligibility the full amount. Since then, the list of schools paying via similar requirements has grown to more than 50.
Crucially, the Supreme Court’s ruling did not compel any college to pay any amount for academic achievement. It instead held that the NCAA and its members cannot conspire, through NCAA rules, to prevent a member school that wishes to pay. This has long been a core legal challenge for the NCAA: When the NCAA restrains competition on behalf of member schools, it risks an antitrust problem. Antitrust law disfavors agreements between competitors to unreasonably restrict how they compete. Member schools are competing businesses.
Once the academic awards restraint was lifted in 2021, some colleges decided to pay. Those schools, the 30-page complaint asserts, would have paid before 2021 if they had the choice. The fact that Ole Miss paid so soon after the Supreme Court’s ruling suggests that point may be true.
One of the paying schools is Oklahoma State, where Hubbard played on a full athletic scholarship until the Panthers selected him in the 2021 NFL draft. Hubbard, who has rushed for 1,078 yards over two NFL seasons, was a star on the field, earning the Big 12 Offensive Player of the Year Award in 2019 and finishing eighth in Heisman Trophy voting. Less publicized, Hubbard was an accomplished student, making the university’s honor roll and Academic All-Big 12 first team.
The complaint contends that “as a direct result of the NCAA rules prohibiting OSU from offering such payments sooner—rules that have since been determined to violate the antitrust laws—Hubbard was deprived of receiving the $5,980 Academic Achievement Awards that he would have earned each year that he attended OSU.”
The money Hubbard would have earned, roughly $24,000, might seem trivial given that he is currently playing on a four-year, $4.2 million NFL contract. However, it is money that he believes he was wrongfully deprived of.
Hubbard is also suing in hopes of representing a class where likely more than 99% of the member athletes will never earn money as pros. Antitrust damages, as the complaint notes, can also be automatically trebled under certain conditions. A former college athlete who receives $72,000 ($24,000 x 3) on account of Hubbard v. NCAA would surely welcome the money.
Like Hubbard, McCarrell enrolled at Oregon in 2017, where she competed before transferring to Auburn. McCarrell made it to the NCAA Championships in the javelin and excelled in the classroom, gaining recognition as an Academic All-American, receiving a nomination for a prestigious postgraduate scholarship and graduating with honors. McCarrell presumably would have been paid the academic award if Oregon and Auburn—both of which now pay—were allowed to do so then.
The case is led by a group of attorneys from Hagens Berman and Winston & Strawn, among them Jeffrey Kessler, who successfully argued for Alston before the Supreme Court. Steve Hagens, who has played a key role in House v. NCAA, is also part of the legal team.
Hubbard v. NCAA draws not only from the Supreme Court’s ruling in Alston but also Judge Claudia Wilken’s 2019 ruling in Alston where she held NCAA rules prohibiting payment for education-related compensation violated antitrust law. In August 2020—after Wilken’s ruling took effect but before the Supreme Court ruled—the NCAA adopted a bylaw permitting football players and men’s and women’s basketball players to receive academic achievement awards. In October 2021, the NCAA revised the bylaw to allow schools to pay all DI athletes the award.
Judge Beth Labson Freeman, who is the presiding judge in the ongoing litigation between LIV Golf and the PGA Tour, will preside over Hubbard v. NCAA.
The NCAA will answer Hubbard’s complaint and likely raise several defenses. One is that college athletes knew, and voluntarily accepted as a condition of the NCAA eligibility, the rules in place when they played from 2019 to 2021. Another is that the NCAA exercised its right to appeals during that period and believed it would prevail at the Supreme Court. Still another defense is the players are making an inherently speculative argument: that in an alternative universe, schools would have decided to pay these athletes.
Hubbard’s attorneys anticipate the NCAA arguing, in sum and substance, that if college players wanted to be paid, they could have turned pro. That would be a misleading argument, the complaint suggests, since the NFL (three years out of high school), NBA (19 years old plus one year out of high school) and the WNBA (22 years old or college grad) have collectively bargained eligibility rules that bar entry until a period of time after high school has elapsed. The complaint also notes that while minor leagues are an option for some athletes, many athletes see college sports—with the accompanying college education—as a superior option.
Hubbard v. NCAA joins a growing list of legal challenges for the NCAA and new president Charlie Baker to tackle. The list includes potential recognition of college athletes as employees of their colleges, conferences and the NCAA, and subsequent unionization by those athletes.
