House v. NCAA settlement: Judge plans to deny agreement if roster limits are not phased in

Judge Claudia Wilken will not approve the House v. NCAA settlement as presently written, she said in an order Wednesday. She told attorneys they have 14 days to either phase in or grandfather roster limits – a central part of the final approval hearing earlier this month.

During the April 7 hearing in the U.S. District Court for the Northern District of California, Wilken told attorneys for both the plaintiffs and NCAA to address her concerns about roster limits within one week. Lawyers then filed a supplemental brief, but did not change the verbiage around roster limits after Wilken suggested phasing them in or grandfathering athletes currently on rosters.

In her order issued Wednesday, Wilken said she would deny settlement approval if the roster limit changes are not made. She added that while the settlement received preliminary approval, that did not mean final approval was a certainty.

“The Court finds that the decision by Defendants and NCAA member schools to begin implementing the roster limits before the Court granted final approval of the settlement agreement is not a valid reason for approval of the agreement in its current form despite the harm discussed above,” Wilken wrote. “Any disruption that may occur is a problem of Defendants’ and NCAA members schools’ own making. The fact that the Court granted preliminary approval of the settlement agreement should not have been interpreted as an indication that it was certain that the Court would grant final approval.”

Under the House v. NCAA settlement, proposed rosters include football (105), men’s and women’s basketball (15), baseball (34), men’s and women’s soccer (28), softball (25) and volleyball (18). Schools around the country started to prepare for such changes to go into effect, which is why the NCAA argued altering the language would create issues.

Additionally, athletes across the country have been told to either enter the transfer portal or not to enroll as a result of the roster limits that would go into place under the settlement. Now, they could potentially have spots on rosters if the agreement does not receive approval.

NCAA: Phasing in roster limits would ’cause significant disruption’

Early in the final approval hearing, Wilken suggested to NCAA attorney Rakesh Kilaru there be an exception for athletes currently on rosters before the changes would take place. That would effectively create a grandfather clause for current athletes who might otherwise lose their spots on the roster as part of the limits under the settlement.

In their supplemental brief, field April 15, NCAA lawyers said they looked into Wilken’s suggestion about changing the roster limits verbiage. Ultimately, attorneys said such a decision would cause a “significant disruption.”

“The Parties appreciate the perspective and heartfelt stories that the student-athletes who objected shared, including those shared at the hearing,” the filing states. “Defendants have evaluated – and discussed with numerous member institutions – the Court’s suggestion to ‘grandfather’ in the roster limits. Defendants, however, have informed Class Counsel that those discussions revealed no practicable way to do so, because ‘grandfathering’ roster limits would cause significant disruption.

“The Parties are both independently aware that member institutions and student-athletes have been making decisions in anticipation of the roster limits being immediately effective if the Settlement is approved.”

Roster limits were key points from objectors who spoke during the hearing, as well. Utah swimmer Gannon Flynn passionately spoke against such limits, arguing athletes are living in constant fear of being cut as a result.

“If you don’t have a perfect season,” Flynn told Wilken, “you might not get another.”

NCAA, plaintiffs react to Judge Wilken’s order

Steve Berman – managing partner and co-founder of Hagens Berman who represents the plaintiffs – addressed Wilken’s decision after her order was released. In a statement to On3, Berman vowed to “work hard” to address the concerns about roster limits.

“We appreciate the court’s guidance and thoughtful review of this monumental case,” Berman said. “We are pleased that the court has rejected all of the objections but the roster issue, and we will work hard to convince the NCAA and the conferences to address the court’s concerns. If we are unable to do so, then we are off to trial and we will return to fighting the NCAA in court with next steps.

“Our clients – hundreds of thousands of hardworking NCAA college athletes – know that greatness is not achieved overnight, and that results come from years of determination. Our firm brings the same fight to the courtroom as our clients bring to the court, and we are not finished with the NCAA.”

The NCAA and power conferences also addressed the latest decision in a statement to On3. They said they are “closely reviewing” Wilken’s order and reiterated the need for “stability and fairness in college sports” through the House settlement agreement.

“We are closely reviewing Judge Wilken’s order,” the statement read. “Our focus continues to be on securing approval of this significant agreement, which aims to create more opportunities than ever before for student-athletes while fostering much-needed stability and fairness in college sports.”

What’s next for the House v. NCAA settlement?

As for the next steps in the House v. NCAA approval process, Wilken said she would delay the denial of final approval so the two sides could come together to modify the settlement. She told the NCAA and plaintiffs’ attorneys to meet with their mediator to discuss such modifications.

“The Court will delay denial of final approval to permit the parties to attempt to modify the settlement agreement so that members of the Injunctive Relief Settlement Class will not be harmed by the immediate implementation of the roster limits provisions,” Wilken wrote.

“One way of achieving that could be to modify the settlement agreement to ensure that no members of the Injunctive Relief Settlement Class who have or had a roster spot will lose it as a result of the immediate implementation of the settlement agreement. … Within fourteen days of the date of this order, the parties shall make their best efforts to consult with their mediator, Professor Eric Green, remotely, and together or separately, about potential modifications of the settlement agreement to address the Court’s concerns.”