Court Denies Class Cert. in NCAA Antitrust Suit

Mintz
Contact

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 In 2011, the NCAA repealed the One Year Rule.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.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Mintz | Attorney Advertising

Written by:

Mintz
Contact
more
less

Mintz on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.