After nearly five years, what stands to be the most expensive and far-reaching legal case in college sports history on Monday reaches a potentially decisive moment. U.S. District Judge Claudia Wilken is scheduled to conduct a hearing concerning final approval of the proposed multi-billion-dollar settlements of three athlete-compensation antitrust cases against the NCAA and the Power Five […]
After nearly five years, what stands to be the most expensive and far-reaching legal case in college sports history on Monday reaches a potentially decisive moment. U.S. District Judge Claudia Wilken is scheduled to conduct a hearing concerning final approval of the proposed multi-billion-dollar settlements of three athlete-compensation antitrust cases against the NCAA and the Power Five conferences.
The deal would include nearly $2.8 billion in damages that would go to current and former athletes — and their lawyers — over 10 years. The arrangement also would allow Division I schools to start paying athletes directly for use of their name, image and likeness (NIL) starting July 1, subject to a per-school cap that would increase over time and be based on a percentage of certain athletics revenues.
through a new entity they are creating — greater enforcement oversight of those arrangements.
What is set to happen in settlement hearing, and why is Olivia Dunne scheduled to speak?
In her courtroom in Oakland, California, Wilken is scheduled to hear from lawyers representing the plaintiffs, primarily Steve Berman and Jeff Kessler, and an attorney representing the NCAA and the conferences.
She also is set to hear from 14 parties who are objecting to the settlement. In most instances, this will be through lawyers representing objectors or groups of objectors. Four objectors are scheduled to speak themselves, including LSU gymnast and renowned social-media influencer Olivia Dunne; Ben Burr-Kirven, who was an All-America football player at Washington and played in the NFL; and a current high school athlete.
granted preliminary approval in early October after lawyers for the principals adjusted the settlement to address concerns she raised that were different from the objectors’.
during the preliminary hearing, Wilken made it clear that she had problems with the settlement as it stood at that point and strongly encouraged the principals to change it — which they did.
Regarding the roster limits, the plaintiffs have argued in written filings that “such a myopic focus on available roster spots for walk-on (non-scholarship) 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.”
And that’s the basic legal standard here — whether the settlement, as proposed, is fair, reasonable and adequate.
This is why Gabe Feldman, director of the Tulane Sports Law Program and Tulane University’s associate provost for NCAA compliance, said the objectors “have an uphill battle” to convince Wilken that the settlement shouldn’t be approved — although he added, “uphill doesn’t mean impossible.”
He said that the fair-reasonable-and-adequate standard means that the issue before Wilken is “not whether it’s the best settlement that ever could have been achieved … there are going to be trade-offs.”
Feldman also said that Wilken can “take into account the risk of (further) litigation and the cost of litigation. … There’s no guarantee that the House plaintiffs would win at trial. There’s no guarantee that the House plaintiffs would win on appeal. There’s no guarantee that the House plaintiffs would win at the Supreme Court. The only thing guaranteed is that it would take a lot of time and cost a lot of money.”
With all of that in mind, Berman, one of the plaintiffs’ lead lawyers said last week: “I think she’s going to approve it.”
What happens if the settlement is approved?
It is unlikely that Wilken will issue a ruling on Monday. But based on the way she has run other hearings not only in this case, but also others she has overseen over nearly 16 years of antitrust litigation against the NCAA, the parties likely will have a good idea of where she stands by the end of Monday’s hearing.
If she grants final approval, schools will be able to move forward with plans to start paying athletes for use of their NIL, and the associated changes also will go forward, including the roster limits.
The 10-year window for payment of the damages award, including what stands to be as much as $775 million in attorneys’ fees and costs for the plaintiffs, would begin. However, if objectors appeal a final-approval ruling by Wilken, those payments would be held in escrow — and not made to athletes or lawyers — until all appeals are fully played out.
While final approval — and even the resolution of any appeals — would wrap up these specific cases, there are related actions that will continue. The case brought on behalf of athletes who opted out could continue.
In addition, the South Dakota attorney general is pursuing a lawsuit on behalf of the University of South Dakota and South Dakota State University that seeks to reduce the amount of money those schools stand to lose from future NCAA distributions while the association pays its share of the presumptive damages. The NCAA attempted to have the case moved to federal court, but a federal district judge recently ruled that it should proceed in state court.
Looking further ahead, it is widely anticipated among college-sports officials that, if the settlement is approved and schools move ahead with plans to allocate their NIL payments to athletes in a manner that provides most of that money to football and men’s basketball players, a Title IX lawsuit will result.
