Department of Justice files statement of interest in House v. NCAA

For the second consecutive day, a state department has weighed in on the impending House v. NCAA settlement. The U.S. Department of Justice (DOJ) filed a statement of interest on Friday on the lawsuit in the U.S. Northern District of California, taking issue with the settlement setting a cap on revenue sharing.

In the 11-page filing on Friday, the DOJ said that the settlement “may not ‘cure the ill effects of the illegal conduct.'” Instead, the DOJ believes that the “Proposed Settlement allows the NCAA, an adjudicated monopsonist, to continue fixing the amount its member schools can pay students for the use of their name, image, and likeness.”

On Thursday, the U.S. Department of Education’s Office for Civil Rights released guidance stating future revenue distributions from an institution to an athlete for NIL rights are classified as “financial assistance.” If not proportionally divided, schools would risk violating Title IX.

The guidance and statement of interest comes in the final days of President Joe Biden’s administration. Both could be altered or withdrawn by President-elect Donald Trump after his inauguration on Jan. 20.

“The life expectancy on a DOJ statement of interest made on Jan. 17 is about 3 days,” legal expert Michael McCann wrote on X. “I doubt it has any sway on Judge [Claudia] Wilken and could be rescinded, too. If the DOJ had filed this last fall, it ‘might’ have had an impact. Now? It looks more like a move to get attention.”

The DOJ also wrote in its statement of interest that the House v. NCAA suit raises antitrust concerns.

“While the Proposed Settlement allows for some relief, it still functions as an artificial price cap on what free market competition may otherwise yield,” the filing reads. “… The Proposed Settlement, however, continues to restrict the compensation college athletes may receive from their school, replacing one cap with another.”

In the filing, the DOJ argued that unlike professional sports, college athletes have no union representation and cannot bargain for a revenue-sharing cap. Therefore, the House settlement does not apply to a labor exemption to antitrust laws.

“Setting aside whether the parties’ factual assertion is correct, it overlooks an important difference for antitrust purposes: while professional athletes can rely on their unions to bargain on their behalf, college athletes have no such union representation,” the statement of interest argues.