United States District Court Judge Claudia Wilken indicated she was set to approve the landmark House v. NCAA settlement after holding a final hearing on Monday in a federal courthouse in Oakland.
Speaking to lawyers for the schools and the association, plaintiffs’ attorneys and to several objectors of the agreement over the course of a seven-hour day, Wilken raised a few sticking points that could be hammered out over the course of the next week. Ultimately, though, she looks set to give final approval in the near future.
“Basically, I think it is a good settlement—don’t quote me—and I think it’s worth pursuing,” Wilken said. “And I think some of these things could be fixed if people tried to fix them and that it would be worth their while to try to fix.”
Wilken gave attorneys representing the NCAA and the Power 5 conferences a week to discuss with the plaintiffs any potential tweaks to the final agreement and for that to be filed with the court. However, in a notable move to speed approval along and show which way she was leaning in the 10-year, $2.8 billion settlement, the judge limited objectors to have just one day to respond to any such changes and requested they may have only one page to do so.
Steve Berman, co-lead counsel for the plaintiffs, noted that of the roughly 390,000 class members impacted by the case, 73,000 have already filed claims for back damages, with 73 others objecting and 343 members opting out. An additional 30,775 members, bringing the overall total of the class into the six-figures, also updated their information as part of the settlement claims process.
“There’s huge support for this settlement throughout college sports,” added Jeffrey Kessler, a veteran antitrust litigator and co-lead counsel. “It’s $2.75 billion dollars just for the Hubbard and House [lawsuits] together. Even just the House settlement alone is one of the largest antitrust damages awards in the history of antitrust class actions.”
“That’s quite a surprising and large number of responses in a class-action case,” Wilken said.
The judge raised three main areas of concern with how the settlement was constructed and urged the NCAA and the plaintiffs to be amenable to making changes that could help with approval.
One of the most-discussed items in Monday’s hearing was the potential new roster limits that are central to the NCAA’s implementation of revenue sharing. As presently constructed, scholarship limits would be replaced by roster limits, capping the maximum number of players on a team instead of allowing a scholarship to be split up to cover several players who are on a team.
Utah swimmer Gannon Flynn was one of several who showed up in person to speak out against roster limits, noting it is already having an impact on players like himself who are either going to have their spot cut or could be on the chopping block if they do not perform up to standards. Division I swimming and diving programs will have roster limits trimmed to 30 athletes beginning this fall despite allowing for all members of the team to receive a full scholarship, which isn’t currently the case.
“If you don’t have a perfect season,” Flynn cautioned, “you might not get another.”
“We’re not against this change in the college sports landscape and the opportunity for athletes to make NIL money and revenue sharing,” added Douglas DePeppe, whose law firm represents several additional athletes objecting to roster limits. “There are a lot of arbitrary and unfair cuts that are happening that none of these athletes anticipated. In fact, in some cases they are being told that they will lose their scholarship.”
The NCAA vigorously pushed back against the idea that roster limits were anything different from the current system which could have coaches cut athletes from the team despite requirements for schools to maintain their scholarships.
“You don’t have revenue sharing without the roster limits,” NCAA attorney Rakesh Kilaru said. “You don’t have revenue sharing without [the new clearinghouse].”
Legal justification for restrictions around associated entities NIL payments (i.e. collectives) and concerns about the initial revenue-sharing cap were also discussed. However, Wilken was particularly focused on the potential for the settlement to certify future athletes who join a Division I program as part of the settlement class, remarking that future 10-year-olds on a playground would become members of the group despite not having a say so.
She later cited several major cases in the area as being somewhat vague on the subject and called it a “difficult” concept to come to terms with.
“I understand the question you’re on, but I think it is solved in our case in particular by giving this future notice a right to object,” said Kessler, confirming future athletes would be given a notice to opt in or opt out as they join a team out of high school. “You’ve got to have a system that applies across the athletes. We think what we’re doing is actually better than doing a class-by-class.”
The most high-profile objection in the hearing came virtually, as star LSU gymnast Livvy Dunne focused largely on issues surrounding the calculation of payouts of back damages and potential limits surrounding the fair market value of NIL deals. Such comments were part of a theme some had with the settlement’s vast majority of payments going to football and men’s basketball players, even with Wilken explicitly saying there was not a Title IX issue with this case.
“This entire process defines athlete value based on the sport you played in and how much revenue your team brought in. But NIL is about more than wins and revenue,” Dunne said. “Sometimes the athlete most harmed by these rules isn’t the star of the team. Sometimes she’s a freshman. Sometimes she’s a gymnast—a young woman with a phone, a dream and the discipline to build something that challenged the norm, even when the system said, not yet.
“This settlement uses old logic to calculate modern value. It takes a narrow snapshot of a still maturing market and freezes it—ignoring the trajectory we were on.”
However, despite that and similar concerns raised, the judge seemed to tip her hand that she would follow through with approving the settlement in the coming weeks.
“Today’s hearing on the landmark settlement was a significant step in modernizing college sports,” NCAA president Charlie Baker said in a statement. “If approved, the settlement will allow student-athletes the opportunity to receive nearly 50% of athletic department revenue in a sustainable and fair system for years to come.”
While time is not of the essence for Wilken, who is set to retire after the case is wrapped up, the schools and conferences have an anticipated July 1 implementation date.
There still seem to be a few T’s to cross and I’s to dot in the interim before hitting that date on the calendar, but a foundation-shifting settlement that will impact college athletics over the course of the next decade looks to be on the metaphorical goal line after Monday’s hearing.
This article was originally published on www.si.com as House Settlement Still on Track for Approval, but Delayed at Least a Week for Tweaks.
