If three mega-lawsuits don’t already have the NCAA’s attention, this will.
Winston & Strawn, one of the nation’s largest law firms, is starting the first division at a major American law firm that will focus on representing collegiate athletes against the NCAA. And the man behind the effort is Winston & Strawn partner Jeffrey Kessler, a labor and antitrust attorney who has worked for players associations in all four major sports leagues, represented players from Michael Jordan to Tom Brady, and litigated the case that brought free agency to the NFL. The division will be run by Winston & Strawn partner David Greenspan and associate Tim Nevius, who previously worked in the NCAA’s enforcement division, according to Bloomberg, which first reported the creation of the division Tuesday.
With enforcement and labor expertise and a commitment to representing players, coaches, schools, and conferences, the division could pose major challenges for the NCAA. Every investigation could carry a potential legal threat from experienced and focused attorneys, making the NCAA’s recent sloppiness in recent debacles at schools like Miami and UCLA — or its perceived overreach at a school like Penn State — more dangerous for the organization. So, too, could a case like a class-action concussion lawsuit against the NCAA, which entered mediation last week, or an investigation like the one into Texas A&M quarterback Johnny Manziel.
The biggest potential threat, though, is on the front the NCAA fears most: compensation for college athletes. The NCAA is already facing two major compensation lawsuits, one from former UCLA basketball player Ed O’Bannon and another from former Arizona State and Nebraska quarterback Sam Keller. In Kessler, they’ll potentially find a major ally, one with experience fighting for players across sports and one who thinks the current system isn’t working for college athletes.
“There are good (legal) arguments that Division I football is basically a business, and that students are exploited as workers,” Kessler told me in January. “And therefore schools should be free to compensate athletes in any manner that they want to, without NCAA restrictions.”
Whether Kessler, Greenspan, and Nevius will pick a fight over how college athletes are classified, a major battle that would go well beyond the scope of the O’Bannon and Keller cases, is unclear. But on a conference call with Bloomberg, he laid out his firm’s philosophy.
“We’re the traditional go-to law firm for people adverse to leagues and associations,” Kessler said. “We represent the players, the cities and municipalities, the sponsors and owners who are fighting with their leagues. We’re not the firm that represents the powers.”
A number of college football players wrote “APU” — for All Players United — on wristbands they wore during games two Saturdays ago, a show of solidarity with the athletes suing the NCAA and with each other. The National Collegiate Players Association has no intention right now of organizing the players into an actual union — they’re not allowed to because the athletes aren’t classified as employees — and top NCAA officials, from president Mark Emmert to conference presidents and athletic directors, say they have no interest in paying players.
But Kessler and Winston & Strawn’s commitment to legal issues in college sports is yet another acknowledgement that the landscape is changing, and not in the direction the people running in the NCAA prefer. And given Kessler’s past, it’s an acknowledgement that comes with something that shifting media and public opinion don’t: the power to disrupt the NCAA status quo on nearly every front.