There has been a long-standing precedent in the American legal system that parties pay their own legal fees. Despite that, 21 Division I conferences that were not named co-defendants in the NCAA v. Alston case are being left with a bill for defendants’ legal fees.
The Alston case has been widely regarded as a huge win for athletes and an even larger loss for the NCAA, but recent developments state that the loss will extend beyond the NCAA. Eric Prisbell of On3 recently reported that 90 percent of the $38 million legal bill will fall on the 32 Division I conferences.
A confidential memo that was sent to all Division I conference commissioners stated that the NCAA Board of Governors will pay just 10 percent of the bill, while the 11 co-defendant conferences will pay 64.2 percent. The remaining 21 Division I conferences - who were not named co-defendants in the case - will have to put up 25.8 percent of the legal fees associated with the Alston case.
According to Prisbell’s report, the NCAA met with Division I commissioners over a year ago to discuss payment for the legal fees associated with the Alston case. The final recommendation from the Finance Committee to the Division I Board of Directors was that the NCAA should absorb the total cost. However, an additional request was submitted should the final request not make it past the NCAA Board of Governors. This secondary request charged the NCAA with 10 percent of the bill, while the remaining 90 percent would be divided amongst the 32 Division I conferences based on each member institution’s maximum grant-in-aid equivalency limits for men’s basketball, women’s basketball, and FBS.
Unsurprisingly, the Board of Governors elected to go with the second recommendation rather than paying the entirety of the legal fees associated with the Alston case. Conferences have been told they can pay their share of the fees through a reduction in their revenue distributions over the course of four years, beginning in 2022.
An anonymous conference commissioner stated that they were caught “off-guard” by the bill because they thought the NCAA was paying it - after all, they were the primary defendants in the case and make upwards of a billion dollars a year. The anonymous commissioner went on to say they plan to raise the issue with their membership, as “it brings up some serious legal issues.”
There was irony in the “#NotNCAAProperty” shirts seen during March Madness, as athletes wore these while participating in the NCAA’s largest money maker - money that was going to be used to fund the case against the athletes. Still, the NCAA’s decision to stick its conferences with the lion’s share of the legal fees will ultimately affect the athletes. For the next four years, athletic departments - many of which took no part in this litigation - will have to adjust their budgets according to the reduction in revenue distributions as a result of this decision. After a big win for athletes, it seems like the NCAA is being a sore loser.
Source: Prisbell, E. Confidential NCAA memo details breakdown of Alston case legal fees, On3 (Aug 16, 2021) https://www.on3.com/news/ncaa-panel-reimagine-college-athletics-model-without-current-d-i-athletes/
Rebekah Ansbro is a second year law student at George Mason University where she is the outreach & social media chair and events chair for the Mason Sport and Entertainment Law Association. You can connect with Rebekah about sport and entertainment law on LinkedIn at: https://www.linkedin.com/in/rebekah-ansbro-21a24115a.