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These Athletes Are Supporting The NCAA In A Supreme Court Case For All The Wrong Reasons

It must be really embarrassing to sign on to a brief, filed in a pending U.S. Supreme Court case, and not have any idea what the brief is arguing. That is the situation that some athletes find themselves in today.

Former NFL running back Darren McFadden, former NBA player Walter Bond, and former college basketball player Tre’ Kelley are three of eighteen former athletes attached to a “friend-of-the-court” brief in the case of NCAA v. Alston, which argues that the NCAA’s compensation caps are necessary to maintain amateurism. The problem with their advocacy is that they either do not believe in the NCAA’s position or did not even take the time to understand what they are supporting.

It is a real wonder why McFadden, Bond, and Kelley would have loaned their names to the brief, and their answers to questions posed by Daniel Libit and Michael McCann of Sportico should cause the NCAA to examine whether there is any remaining probative value in having those former players associated with the NCAA’s mission.

“In a telephone conversation last week, McFadden indicated that he was largely unaware of what the grant-in-aid litigation was about and gave indications that his intuitions were more in line with the plaintiffs,” states the article. The plaintiffs have sued to remove caps on non-education-related benefits. McFadden admitted to Libit and McCann that he supports college athletes receiving an additional stipend to their scholarships and that he had not done all of his research on the case.

Bond told Libit and McCann that he thinks college athletes should be classified as employees and that it is possible he actually does not agree with the NCAA’s position in the Alston case, despite signing onto a brief in support of the NCAA. Bond also acknowledged that he was uninformed about the key arguments in the Alston case as well as the brief that he signed.

Kelley’s commentary makes the whole situation seem very shady. He told reporters that he signed onto the brief as “a favor for a good buddy of mine who works for” Orrick Herrington & Sutcliffe, the law firm that filed the brief. He later refused to answer further questions based on the advice he received from that firm.

For what it is worth, Bond and Kelley followed up to Sportico with a joint statement highlighting that they are not lawyers, that they believe in the system of amateurism in college sports, and that they support changing the model of amateur athletics so that athletes can benefit from the commercial use of their names, images, and likenesses. They indicated that they would not have signed onto the brief but for the NCAA’s public commentary supporting college athletes earning money from the use of their publicity rights.

Written by Darren Heitner

Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

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