The NCAA has stated publicly and in court that it does not and will not retaliate against any student athlete for participation in legal action, including anyone who may choose to participate in the likeness litigation.
Dear Mr. Hausfeld:
To be perfectly clear to you, yet again, the NCAA has not and will not retaliate against any student-athlete because he or she participates in litigation against the NCAA, including your lawsuit. Indeed, there have been dozens of cases brought by student-athletes, none of whom have claimed retaliation by the NCAA. Your July 8, 2013 request for a stipulation regarding hypothetical “retaliation” against plaintiffs is completely unnecessary and, given the NCAA's prior representations on this topic, offensive. There is no good faith basis for your contention that a current student-athlete participating in litigation against the NCAA has any worry of “retaliation, intimidation or coercion” from the NCAA. We have repeatedly made it clear to you in the course of this litigation that participation in a lawsuit against the NCAA has no effect on eligibility, and we can now only conclude that your letter has more to do with grandstanding for the press than actual concern for any potential current student-athletes seeking to join your lawsuit, or any attempt to move this litigation to a just conclusion.
This case would not be the first time that the NCAA has been sued by a current student-athlete, yet we are unaware of any instance when the NCAA was claimed to have engaged in retaliation, intimidation or coercion against such a plaintiff. In 2006, as you well know, a federal court preliminarily certified a class that included a substantial number of current football and men's basketball student-athletes in litigation against the NCAA, yet there were no reports of any action taken against any of those current student-athletes.
Moreover, the conduct of the current litigation, and the manner in which the current plaintiffs have been treated by the NCAA, should put to rest any concerns you claim to have about “retaliation.” As you know, just this past April two of the current plaintiffs – Bill Russell and Oscar Robertson – were named to the NCAA's All-Time Players Team. Far from being the object of NCAA “retaliation,” Messrs. Russell and Robertson were honored by the NCAA. Further, the NCAA flew them and their guests to Atlanta to attend this year's Final Four. The Michael D. Hausfeld, Esq. July 10, 2013 Page 2 NCAA gave them and their guests complimentary tickets to the Final Four, paid for their hotels and gave them full access to the NCAA's VIP hospitality amenities. All of this occurred while Messrs. Russell and Robertson were actively suing the NCAA. At no point did the NCAA “retaliate” against them for their decision to sue. Nor does it have any intention to “retaliate” against any other plaintiff who may join your lawsuit.
The NCAA has already represented to you in formal discovery that participation in litigation against the NCAA will not result in loss of eligibility or in an enforcement action. In its January 14, 2013 response to your third set of requests for admission, the NCAA denied any such intent or outcome in response to the exact same assertion:
- REQUEST NO. 1 [Hausfeld]: Admit that a current student-athlete's participation in this lawsuit will result in the loss of eligibility to participate in college athletics by You.
- RESPONSE NO. 1 [NCAA]: … The NCAA denies that a loss of eligibility to participate in NCAA-sponsored intercollegiate athletics would result solely from an individual's participation in a lawsuit as a plaintiff or member of a putative plaintiff class challenging NCAA rules or actions. NCAA rules do not condition eligibility on an agreement not to sue the Association or its members. There is no Division I rule that would cause a loss of eligibility based solely on a student-athlete's decision to sue the NCAA and/or any of its members, and there is no record of a student-athlete losing eligibility because he or she filed a lawsuit against the NCAA and/or any of its members*.
- REQUEST NO. 2 [Hausfeld]: Admit that a current student-athlete's participation in this lawsuit will result in an enforcement action by You.
- RESPONSE NO. 2 [NCAA]: … The NCAA denies that an NCAA Division I enforcement action would result solely from an individual's participation in a lawsuit as a plaintiff or member of a putative plaintiff class challenging NCAA rules or actions. There is no Division I rule that defines a student-athlete's decision to sue the NCAA or its members as a violation of NCAA bylaws that would require an enforcement action, and there is no record of an NCAA .
Moreover, the NCAA submitted the sworn testimony of Kevin Lennon, the NCAA's Vice President of Academic and Membership Affairs, in March 2013, Dkt. 695-13. Mr. Lennon testified that current student-athletes can and do participate in litigation regarding alleged violations of their publicity rights and that NCAA amateurism and eligibility rules do not prohibit such actions:
8. For example, in 2008 the NCAA informed CBS, its broadcast partner, that NCAA football players could take action if CBS proceeded with a “fantasy football” game based on the rosters of NCAA football programs. Although the NCAA is not aware of any football player suing over that “fantasy football” game, such lawsuits would not have threatened, or been inconsistent with, those student-athletes' continuing eligibility for NCAA sports.
9. Similarly, Johnny Manziel, who won the 2012 Heisman Trophy while playing quarterback for the Texas A&M football team, recently sued a t-shirt maker that he alleged was selling t-shirts that violated, among other things, his publicity rights. NCAA amateurism and eligibility rules do not prohibit the filing of that lawsuit.
Finally, while the NCAA has no reason to believe that its member institutions, conferences, athletic departments or coaches would take any action against a current student-athlete who chose to participate in this litigation, we must again remind you that we represent only the NCAA and cannot speak (or sign stipulations) for NCAA schools, conferences, athletic departments or coaches who are not present before the Court. We have no basis or authority to make any representations on behalf of our member institutions, although we are not aware of any facts that would suggest that “retaliation” against a current student-athlete who joined your litigation would be a risk.
Sincerely,
Gregory L. Curtner
Schiff Hardin LLP
*These assurances, of course, do not mean that a current student-athlete who joined this lawsuit would therefore no longer be required to follow NCAA eligibility and amateurism rules or be immunized from any prior infractions. His participation in this lawsuit would simply have no effect on how those rules would be interpreted or enforced with respect to him. Michael D. Hausfeld, Esq. July 10, 2013 Page 3 enforcement action brought about solely because a student-athlete filed a lawsuit against the NCAA and/or any of its members
