Donald Remy has an answer for those who believe the NCAA is waging a losing battle against Ed O'Bannon.
The Indianapolis-based NCAA's top lawyer insists it is a winnable case and that the law is clearly on his side. If he can't persuade the 9th U.S. Circuit Court of Appeals, Remy is poised to deliver on his promise to argue those points before the U.S. Supreme Court, even as some insiders now believe he should end the five-year legal battle.
"We believe as more juries examine these issues, it will become clearer that the position the association is articulating is right on the law and right on the facts," the NCAA's chief legal officer told The Associated Press recently. "I'm not one to predict what the Supreme Court might or might not do or what the 9th Circuit will do. But I do believe that we look at the cases, and based upon the law and based upon the facts, the positions that we've taken are correct."
While the NCAA has had an up-and-down record in the courts, most legal experts do not expect the appeals court to overturn U.S. District Judge Claudia Wilken's landmark ruling that would allow Bowl Subdivision football and Division I men's basketball players to be compensated for the use of their names, images or likenesses in video games and TV broadcasts.
If Wilken's decision stands, players would receive at least $5,000 each season they compete with the money going into a trust fund. Players could collect the money after they graduate or complete their eligibility, whichever comes first. The payments could begin in August.
South Carolina President Harris Pastides, the NCAA's new board of directors chairman, recently told CBSsports.com he would like to "turn the page" on the O'Bannon case. The comments prompted Kansas State President Kirk Schulz, chairman of the NCAA board of governors, to respond Monday night with a statement on the NCAA website.
"The NCAA continues to believe that Division I amateurism rules contested in the O'Bannon case are legal and that the 9th U.S Circuit Court of Appeals will overturn the district court's order to the contrary," Schulz wrote in part. "Until the appellate court issues its decision, however, it is too early to speculate what further appeals, if any, the NCAA might seek. As is often the case, members of its boards may have varying views. To be clear, the NCAA always has defended its principles vigorously and it has not ruled out any options about future appellate measures."
In April, Schulz, Pastides and NCAA President Mark Emmert appeared together and seemed to be unified on how to move forward.
What happens next is unclear.
NCAA attorneys made oral arguments in front of a three-judge panel at the 9th Circuit in mid-March. Remy said there is no timetable for a decision.
In the meantime, Remy and his staff are trying to come up with a plan if they lose again in court and Wilken's injunction goes into effect Aug. 1.
"Candidly, it's a difficult task," Remy told the AP. "We're in the process of trying to determine what we would need to do if Aug. 1 came around and the injunction was still in place and we had to advise the membership on what the next steps would be. I don't have the conclusions yet, but we're thinking about it. Because of the complexity of the challenges that are laid out in the injunction, the truth of the matter is, if it is the law and the association has to follow it, we'll follow it."