General view of the NCAA logo. (Photo: Kirby Lee, USA TODAY Sports)

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The NCAA and 11 major conferences on Friday night began the process of asking the 9th U.S. Circuit Court of Appeals to overturn a recent ruling in which a federal district judge granted class-action status to a pair of lawsuits challenging the NCAA’s current limits on the compensation athletes can receive while playing college sports.

Two weeks ago, U.S. District Judge Claudia Wilken decided to allow the cases to proceed as class actions, rejecting the NCAA’s and the conferences’ argument that lifting the limits would result in star athletes getting much greater compensation than they can now while scholarship and playing opportunities for other athletes would be eliminated because schools would need ways to find the money to pay the stars.

If the cases do not remain certified as class actions, they become limited to the named plaintiffs only.

One of the cases began on behalf of former West Virginia football player Shawne Alston, who is no longer involved as named plaintiff. It was consolidated with other suits and now covers football, men’s basketball and women’s basketball players in the 10 FBS conferences and the Western Athletic Conference. It also seeks unspecified monetary damages based on the difference between the value of an athletic scholarship as currently defined by the NCAA and the value of a scholarship as previously defined by the NCAA, although class certification of the damages aspect of the case has not yet been filed.

The other case is being pursued on behalf of plaintiffs led by former Clemson football player Martin Jenkins and two current Wisconsin athletes — basketball player Nigel Hayes and football player Alec James. It covers football and men’s basketball players in the power conferences, and it is being directed by Jeffrey Kessler, who gained renown for his representation of professional sports players’ unions and involvement in a case that set the stage for NFL free agency.

Wilken is the same judge who handled the Ed O’Bannon lawsuit and found that the NCAA’s limits on what major-college football and men’s basketball players can receive for playing sports “unreasonably restrain trade” in violation of antitrust laws.

That finding has been upheld by a three-judge panel of the 9th U.S. Circuit of Appeals, although the panel — by a 2-1 margin — threw out Wilken’s plan that would have allowed schools to provide athletes deferred compensation of as much as $5,000 per year. The panel’s majority ruled that the law “requires that the NCAA permit its schools to provide up to the cost of attendance to their student athletes. It does not require more.” The O’Bannon plaintiffs’ bid for a re-hearing of the case by an 11-member panel of the 9th Circuit was rejected earlier this week.

For a case to be a class action, the plaintiffs must demonstrate, among other things, that the case involves questions of law or fact that are common to the prospective wider class and that the named plaintiffs can represent the interests of the entire class.

Wilken ruled that would be the case here, saying that the NCAA’s argument against class-certification depends “on the assumption that schools could not afford to spend more money compensating all student-athletes rather than cutting payments to some. That assumption … is not supported.”

She rejected what she described as the NCAA’s and the conferences’ prediction that an injunction “would increase the costs to schools of participating in FBS and Division I athletics and, in turn, schools would stop participating in FBS and Division I athletics or take steps to lower their costs, such as offering fewer” scholarships.

Citing one of the plaintiffs’ experts, Wilken noted that schools could find additional money for sports programs from universities’ general funds, from universities’ endowments, increased alumni donations “specifically made to cover athlete salaries” and “reductions in spending on other factors that are complements with players, such as spending on coach’s (sic) salaries or on facilities” for athletics and/or other purposes.

She added that the plaintiffs and their experts “persuasively demonstrate that (the NCAA’s) bases for predicting that schools would be forced by budgetary constraints to make decisions leading to” conflicting outcomes for athletes “are flawed.”

On Friday night, the NCAA and the conferences argued that Wilken’s decision essentially amounted to her saying “that either (the NCAA and the conferences) could protect non-superstar … class members from the effects of a free and open market by adopting new rules to prohibit schools from reducing or eliminating existing athletic scholarships, or the court itself could impose such rules.”

The NCAA and the conferences added that Wilken’s ruling “in the face of the demonstrable conflicts of interest among class members … is manifestly erroneous, and should be reversed.”

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