Today could be a decisive moment in sports history as a judge in California conducts a hearing on final approval of a settlement that would reshape college sports. Follow along for live coverage.
U.S. District Judge Claudia Wilken is conducting a hearing today 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 centerpiece case is one brought on behalf of named plaintiffs including former Arizona State swimmer Grant House. The hearing is being held in Oakland, California. It was set to begin at 1 p.m. ET, and is scheduled to end no later than 8 ET.
Wilken is scheduled to hear from lawyers representing the principals and from 14 parties who are objecting to the settlements. Representing the plaintiffs are Steve Berman and Jeff Kessler. They are the attorneys who led the Alston case against the NCAA that eventually resulted in a unanimous Supreme Court ruling in favor of the athletes. Representing the NCAA and the conferences is Rakesh Kilaru, an outside attorney based in Washington, D.C.
In most instances, the objectors — or groups of objectors — will be represented by lawyers, but four athletes who are objecting are scheduled to speak.
What’s at stake today
Here is what’s at stake in today’s hearing:
An arranagement that 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.
The proposed allocation of the damages would heavily favor football and men’s basketball players because of modeling done by an economics expert for the plaintiffs who determined that those athletes had the greatest value in the marketplace while the NCAA had restrictions on athlete NIL activities.
This will be challenged by objectors today, based on Title IX, the federal gender equity law. Among other reasons, the objectors say that since this money would have come from the schools, it is subject to Title IX requirements.
However, those two elements would be just part of a comprehensive reshaping of college sports that would occur under the settlement.
Among other changes:
●NCAA leaders would seek to engineer rules changes eliminating longstanding, sport-by-sport scholarship limits and replacing them with a new set of roster-size limits. In the first academic year after final approval of the settlement, the roster limit in football, for example, would be 105. Some FBS programs have had many more than that. Rosters in other sports at some schools also stand to be reduced. This is likely to be a target of objectors today.
●While athletes would continue to have the ability to make NIL deals with entities other than their schools, the settlement would allow the NCAA and the power conferences to institute rules designed to give the power conferences — through a new entity they are creating — greater enforcement oversight of those arrangements. This, too, is likely to come up today.
We are underway
All lawyers and objectors have made appearances and Judge Wilken has taken the bench.
No ruling today
Judge Wilken says she will not be ruling from the bench today. This is not a surprise.
What will be addressed today
Judge Wilken runs down issues she will be considering today and beyond in her decision to approve.
And the list is lengthy: Claims of future college athletes, third-party NIL agreements, roster limits (although Wilken says there “may be a workaround to this problem”), an existing cap on payments being replaced by another cap.
She says she does not see see this as a Title IX case or as being the correct vehicle for determining whether there should be a collective bargaining agreement for college athletes.
Plaintiffs talk about risk of no settlement
Plaintiffs’ lawyer Steve Berman says that more than 88,000 athletes have submitted claims ‒ about 30% of those eligible.
He also says that a risk of not settling or the settlement being rejected is that Congress will act to give the defendants immunity from what he says would be $10 billion in risk from the House case and billions more from the other cases that would be part of a settlement.
Berman says that Sen. Ted Cruz (R-Texas) is prepared to introduce a bill that would provide this immunity. However, Cruz has not gone beyond a discussion draft that would provide more limited protection for schools.
Plaintiffs make case about support for settlement
Plaintiffs’ lawyer Jeff Kessler adds to Berman’s report on claims from athletes, saying that more than 30,000 more athletes have updated address information, so he says a total of more than 118,000 athletes have expressed support. “There is huge support for this settlement” in the college sports community. He says this is the largest amount of participation in a settlement that he has seen in his lengthy career as an antitrust litigator.
Judge’s questions about future
Judge Wilken, as she did during preliminary approval hearing, raises concern about appropriateness of the settlement setting terms for future college athletes and the ability of those athletes to raise objections ‒ or, as she put it “the 10-year-old playing kickball on the asphalt who would not be aware” of the settlement.
Judge’s skepticism about roster limits
NCAA lawayer Rakesh Kilaru, arguing in favor of the settlement, extols the virtues of scholarship limits being eliminated in favor of roster limits. Wilken cuts him off and says: “That’s small comfort (to) the ones who don’t get the roster spot or the scholarship.” She expresses particular concern for athletes who have made school choices based on having roster spots available, “and then being told unceremoniously they wouldn’t have one.”
Kilaru says it’s the settlement as a whole that’s at issues. He says “you wouldn’t have the revenue sharing” thorugh school NIL deals with athletes without the roster limits.
Judge asks about phase-in for roster limits
As NCAA lawyer Kilaru continues talking about merits of no scholarship limit vs. roster limts, Wilken asks whether there “could be an interregnum period” and could be phased in until current athletes graduate. Kilaru responds that is not part of the settlement deal that required not only negotiation with plaintiffs but to get the schools to agree to it.
Objectors begin making their cases
Steve Molo, a lawyer for a group of objectors, says he is not here to “blow up the settlement, but it needs to be fair.” And he argues it isn’t, with regard to the start of roster limits.
In a free market, he says, schools should have as many players as they want.
Wilken: “Why?” Isn’t there a competitive advantage problem?
Molo: We haven’t seen that effect so far.
Wilken: Do you want scholarship limits or roster limits?
Molo: “I want neither.”
Wilken again raises the prospect of a phase-in. But she says the issues isn’t athlete disappointment ‒ but rather whether the roster limit is an antitrust violation as it pertains to current athletes, as opposed to future athletes who would know these rules.
Title IX arguments and cap arguments not getting traction
Molo tries to make case for Title IX being applicable to the damages distibution and the idea that one salary cap would be replaced by another with schools’ NIL payments to athletes being limited to 22% of certain revenues.
Wilken says the new cap proposed by the settlement needs to be judged based on the balance of risks and rewards of the settlement compared to continued litigation.
Judge Wilken having trouble following next objection
Up next for the objectors is a group represented by Michael Hausfeld, who was the lead attorney for plaintiffs in the Ed O’Bannon litigation ‒ another case overseen at the district court level by Judge Wilken.
Hausfeld also makes an argument against the cap that would be placed on schools’ NIL/revenue-sharing payments to athletes. He is also attempting to make an argument against the rules that the NCAA and conferences plan to impose regarding their evaluation of the appropriate market value of NIL deals with non-school entities. These are the deals that currently are being made through collectives.
Wilken says she is having trouble following his point, however.
Another objector on roster limits
Attorney Laura Reathaford, who notes that she is representing her daughter’s objection to the settlement, says of the roster limits: “This is a harm argument.” She says injunctions such as the one that would set the stage for the NCAA’s rules going forward on roster limits should “prevent harm. This injunction is creating harm.”
Judge Wilken remarks that in a case covering 390,000 people it’s difficult to have a situation where no one is getting harmed.
Reathaford argues “that is completely not allowed,” and cites several prior cases that she says backs up her contention.
Wilken asks for a solution.
Reathaford says she likes the “grandfathering” idea that Wilken has mentioned earlier in the hearing.
Judge Wilken calls for recess
Judge Wilken takes 10-minute recess. She says that when hearing resumes, she will be calling the athletes who are objecting and appearing today on their own, without a lawyer. Among these athletes is Livvy Dunne, an LSU gymnast and renown social-media influencer.
