Lawyers for the plaintiffs in the proposed multi-billion-dollar settlements of three athlete-compensation antitrust cases against the NCAA and the Power Five conferences made a voluminous court submission Monday that strongly responds to a range of objections to final approval of the deal.
U.S. District Judge Claudia Wilken is set to hold a final-approval hearing on April 7 concerning the agreements, which would include nearly $2.8 billion in damages that would go to current and former athletes over 10 years. They also would allow Division I schools to start paying athletes directly for use of their name, image and likeness (NIL) during the 2025-26 school year, subject to a per-school cap that would increase over time and be based on a percentage of certain athletics revenues.
More than 70 objections were filed with the court in January, including those that were dated by a Jan. 31 deadline, but did not enter the court record until weeks later. In addition, nearly 350 current or former athletes who could have participated in the proposed settlement have opted out, with several new lawsuits against the NCAA being spawned as a result.
Many of the objections were centered — sometimes in emotional, personal terms — on the sport-by-sport roster limits that would go into place for schools that participate in the settlement and begin making NIL deals with their athletes. The limits are likely to result in hundreds, if not thousands, of current walk-on athletes losing their places on Division I teams. The roster limits would be accompanied by the elimination of sport-by-sport scholarship limits that currently exist for all NCAA Division I schools.
Among the array of other objections were arguments that the per-school cap on NIL payments to athlete would just constitute another antitrust violation, the damages claims are being settled for too little money, and the allocation of damages payments discriminates against female athletes and sets the stage for future Title IX violations as schools set up allocations of NIL payments.
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“This is not to say that the settlement resolves all concerns of every class member — no class action settlement could meet that test,” the plaintiffs’ lawyers wrote. “By its nature, any settlement is a compromise … The test is whether the settlement, viewed as a whole, is in the best interests of the class. The House settlement demonstrably is.”
The damages settlement “is one of the largest in antitrust history … a monumental recovery,” the lawyers wrote, and the arrangement to allow athletes to be paid directly by their schools in a form of revenue sharing is “transformative” and “expected to deliver an additional $20 billion or more in value to college athletes” over the next 10 years.
They said that since a claims website became available, more than 73,000 of a possible total of 390,000 former and current athletes “have filed valid claims.” They juxtaposed those numbers against the number of objections and opt-outs, and repeatedly argued, in varying ways and on various topic, that if there were so many athletes with so many objections, “their remedy was to opt out — not to see to deny final approval for everyone else.”
Further, they asked Wilken to deny any request that start of the new pay system for athletes be delayed, pending the outcome of any possible appeals of a ruling in favor of final approval. Allowing such a delay “would irreparably harm tens of thousands of athletes,” they wrote.
The plaintiffs’ lawyers also noted that “there have no objections asking (Wilken) to deny” their motion for nearly $525 million in fees and costs and for the right to to apply annually to a judge or special master for additional amounts that, according to the filings, could total roughly another $250 million. The $775 million total, like the case’s other amounts, would be mostly spread over 10 years. “Plaintiffs submit that the fact that there are no such objections here further indicates the strength of the settlement obtained.”
Arguments against House settlement objectors
Across a 73-page filing, the plaintiffs’ lawyers addressed, even if briefly, every significant objection that was raised. Here are the top objections and arguments:
The lawsuit is being settled for too little: The lawyers noted that in the Ed O’Bannon antitrust suit — which was handled by Wilken — the 9th U.S. Circuit Court of Appeals overturned one of Wilken’s remedies, which was to allow college football and basketball players to get $5,000 in deferred compensation for use of the NIL’s. (Ultimately, the O’Bannon case resulted in athletes being able to receive scholarships covering the full cost of attendance, not just tuition, fees, room, board and books.)
“The appellate court concluded that such a remedy would constitute a ‘quantum leap’ from what was previously permissible. If those rejected $5,000 payments would have been a quantum leap, this settlement represents an intergalactic paradigm shift,” the lawyers wrote.
One illegal compensation cap is being replaced by another: This argument was advanced by, among others, one group of objectors being represented by the same lawyers who represented O’Bannon.
To this, the plaintiffs’ attorneys wrote: “Ironically and certainly disingenuously,” the lawyers who also represented O’Bannon and are now arguing against this cap “defended a $5,000 cap” in the O’Bannon appeal. “The reality is that when a player compensation system is the subject of a class action settlement — or even a verdict — it is not uncommon for a compromise to be adopted” that includes a cap, they pointed to labor cases involving the NBA and NFL that set up the governors they now have on player pay.
Roster limits hurting walk-on athletes: The plaintiffs’ lawyers argue that “such a myopic focus on available roster spots for walk-on (non-schiolarhip) athletes … is not a basis for disapproving the settlement.” The roster limits occurring alongside the end of sport-by-sport scholarship limits, they say, is fair.
“To be sure, losing a roster spot is no small matter for those impacted,” they wrote, “But just like the least competitive walk-on athletes may lose a roster spot under the settlement the more competitive walk-on athletes may now enjoy an athletic scholarship that was previously unavailable to them. On balance, that is an extremely reasonable compromise.”
Title IX: The plaintiffs’ lawyers wrote that they did not assert Title IX claims, and settlement “does not and cannot address them. Accordingly, Title IX does not govern how past damages should be allocated” and “for better or worse,” college athletes’ NIL value “has historically been driven by revenues from Division I football and men’s basketball, as well a [sic] Division I women’s basketball to a lesser extent.”
The question of whether Title IX will apply to schools’ payments to athletes in the future “remains unresolved,” and it’s an issue that Wilken “need not resolve to grant final approval of this settlement.”