What some legal experts are looking for in the long-form House v. NCAA settlement

When the long-form House v. NCAA settlement is submitted to U.S. District Judge Claudia Wilken on Friday, the devil will be in the historic details.

We know the settlement entails the NCAA and all 32 Division I conferences paying $2.8 billion in damages to athletes over a 10-year period, and schools, at their discretion, being able to pay athletes as much as $22 million annually. And the agreement – if and when Wilken certifies it in the coming months – is expected to settle at least two other antitrust lawsuits facing the NCAA: Carter and Hubbard.

But there is plenty we don’t yet know.

It’s been two months since plaintiffs’ attorneys – Jeffrey Kessler and Steve Berman – and defendants – the NCAA and Power Five conferences – agreed to the broad strokes of settlement terms. But that monumental agreement raised a host of questions, some of which will be answered, at least in part, in the long-form agreement.

Interviews with several industry sources and legal experts – both on and off the record – provided a glimpse into what they will have their eye on when the much-anticipated long-form settlement is submitted Friday to the court.

What are the roster limits for each sport?

Scholarships will increase across sports, but roster limits will be implemented across sports. On3 confirmed the expected roster limits for football (105), men’s and women’s basketball (15), baseball (34), men’s and women’s soccer (28), softball (25) and volleyball (18). 

For football specifically, several coaches expressed concern in recent weeks that roster limits could bring several consequences, including adversely affecting some programs’ tradition-rich walk-on programs (see Nebraska) and roster depth for practices late in the season. 

Will Title IX ramifications be addressed?

Spoiler alert: Highly doubtful.

This has been the largest question hovering over the House settlement. Multiple legal experts said the settlement is not expected to address how Title IX applies to revenue that schools will share with athletes.

Asked to weigh in on the Title IX question during a phone interview in late May, Berman only told On3: “I think there’s been inequity in the way they’ve treated female athletes. So I’m hoping, going forward, they do a better job.”

The dilemma: Do schools need to share revenue proportionally with athletes to remain in Title IX compliance? In other words, if a school has 55% female athletes, do female athletes need to receive 55% of the shared revenue?

If the answer is yes, some legal experts said, then athletes in football and men’s basketball could have grounds for litigation because they wouldn’t be receiving the bulk of dollars despite being the revenue producers. 

There is no consensus among legal experts on how Title IX applies. Several industry leaders told On3 that there is a growing urgency to receive formal guidance either from the courts or from the U.S. Department of Education. 

“We’re getting information in real-time, as I think all of our other conference commissioners and partners are doing,” American Athletic Conference Commissioner Tim Pernetti told On3 Tuesday. “We’re actually expecting another update this week to get a little bit more of a steer on that. I think that’s the one thing hanging out there that everyone needs to understand more – how we approach it.

“The growth of women’s sports in this country right now is exciting. This is not a moment in time anymore. This is a movement. Women’s sports are going to be important in this conference, and in order to make sure we set ourselves up for success, we need a little more transparency about Title IX and how should we all be approaching it as an industry.”

Is there clarity on third-party enforcement?

There is expected to be a third-party enforcement entity that emerges from the settlement, but details have been scarce. Plenty of intrigue surrounds how it will operate outside the parameters of the NCAA, how sharp its teeth may actually be and what specific activity it may police. 

“Are the parties really going to ask the court to oversee all of this?” Boise State sports law professor Sam Ehrlich told On3. “Judge Wilken is on senior status – and has been for the past ten years – is she going to be expected to oversee this when there’s a good chance she’s going to want to retire soon? If not, who? And if oversight isn’t going to be handled by a judge, who will? Kessler and Berman themselves?”

On a related note, Mit Winter, a sports attorney for Kennyhertz Perry, pointed to growing recent discussion surrounding how the settlement could allow the NCAA to prohibit what Big Ten Commissioner Tony Petitti called “third-party pay-for-play.” That is an apparent reference to third-party, donor-driven collectives paying athletes overtly for recruiting and retention efforts outside of what is considered “true NIL.”

“I want to see what language in the settlement agreement the NCAA and others think will really allow them to do that,” Winter said. “Because the settlement agreement doesn’t give them an antitrust exemption and it can’t bind non-parties like collectives and others that enter into NIL agreements with athletes to the terms of the settlement.

“Relatedly, I’m interested to see the language in the settlement agreement about the discussed new third-party entity that will be reviewing NIL deals to see if they are ‘true NIL.'”

What does annual opt-out mechanism entail?

The settlement is expected to provide an annual mechanism for future college athletes to opt out from or object to settlement terms. That is designed to prevent future large-scale, class-action suits that – like the House case – posed an existential financial threat to the NCAA.

“They [the NCAA] want the settlement to go forward and for there to be stability,” Berman said. “And in order to do that, we have to somehow get future athletes to agree to this. But every future athlete is entitled under the law not to be bound without notice. So every year they’ll get a notice, and then they have the opportunity to object.”

This annual mechanism, and how it pertains to athletes not yet in college, could pique the interest of Wilken as she reviews and assesses the agreement. 

Winter said he believes Wilken will “scrutinize that language and the opt-out procedure very closely when deciding whether to approve the settlement, and she may not approve it if she views it as an attempt to bind non-class members to the settlement terms.

“I also think this is an area, along with the third-party NIL enforcement mechanism, that may see a lot of objections from class members and third parties.”

How much will athlete rights be addressed?

One missing element in the settlement – at least in terms of what has been reported here and elsewhere – is a robust discussion about athletes soon having a proverbial seat at the negotiating table. 

In late May, Berman acknowledged to On3 that the only way for the NCAA to completely insulate itself from further antitrust lawsuits is by either opening the door to athlete collective bargaining or securing an antitrust exemption from Congress.

The NCAA won’t do the former and is aggressively pursuing the latter.

Several organizations – Athletes.org and the College Football Players Association chief among them – are trying to position themselves to best represent the interests of college athletes as the industry continues to move toward a more professionalized model.

It remains to be seen whether the long-form settlement will address the question of student-athlete representation and voice at all.

“One thing that wasn’t in the term sheet much was athlete rights, athlete voice,” Jim Cavale, founder of Athletes.org, told On3 on Wednesday. “And so it’s going to be really interesting to understand what the athlete’ rights and the athletes’ voice are and how they will be exercised over these next 10 years. 

“Because if it’s not in it enough, and there’s not a mechanism for the athletes to exercise their rights and their voice enough, that’s going to really be a reason you’re going to see more and more lawsuits. And [then] this is just a can-kick down the road.”

Will they show their work in formula for damages?

Multiple sources said it will be interesting to see the formula that will be used to determine the amount of back damages each class member will receive.

We know the vast majority of the $2.8 billion in damages will be dispersed to power five football and basketball players. On3 previously reported that the settlement is on track to disperse 75% of TV revenue in back damages to football. From there, 15% would be funneled to men’s basketball, 5% to women’s basketball and the final 5% would be divided by the remaining athletes.

“The factors used in the formula will be interesting to see,” Winter said. “And schools will be very interested to see this formula as well because some of them are planning on using it – or something similar – to calculate how much NIL compensation they will pay to athletes moving forward.”

Will House agreement include any surprises?

The last six months (if not longer) have been defined by one seismic development after another, each of which is reshaping the enterprise into a more professionalized model. 

The long-form settlement is not expected to include any monumental unexpected development. But could there be a surprise buried within the details of the settlement terms?

“I’ll be really curious to see if there are any additional terms added in that go behind the four corners of the litigation,” Ehrlich said. “It seems risky to ask a judge to approve a settlement that goes so far beyond what the plaintiffs originally challenged and asked for in relief, especially when it has such a broad impact on an entire industry.  

“Roster sizes already do this – that wasn’t an issue in any of House, Hubbard, nor Carter. But will there be anything else?”