Will the House v. NCAA lawsuit still settle?
College football closed Week 2 of the season on Saturday. But the impact of the House v. NCAA case even possibly going to trial remains one of sports’ top headlines.
During last Thursday’s preliminary approval hearing in the Northern District of California, Judge Claudia Wilken poked holes in the settlement’s framework for NIL collectives and boosters.
She expressed concern the agreement would take away from the “large sums” of dollars currently going to athletes. The hearing left the NCAA with a major question: Move forward without enforcement around NIL collectives or possibly land a trial date.
After Thursday’s hearing, plaintiffs’ attorney Jeffrey Kessler told On3 he’s “100% serious” about heading to trial. Speaking with sources over the weekend, On3 learned leaving collective/booster restrictions out of the agreement could be a dealbreaker for certain conferences. Not only is the NCAA named as a defendant in the suit but so are the ACC, Big 12, Big Ten, Pac-12 and SEC.
“Well, it needs to be resolved, because we entered into a settlement, and we expect that entire settlement to be accepted by the judge,” Georgia president Jere Morehead told The Athletic. “She expressed some concerns, and hopefully those concerns will be addressed over the next three weeks.”
NIL collectives support Wilken’s decision
NIL collectives are not backing down, either.
The Collective Association, which includes 42 members, released a statement commending Wilken. Meanwhile, NCAA president Charlie Baker admitted to member institutions that the hearing “did not go as we hoped.”
“They’re literally just clawing back the ability for athletes to earn money,” The Collective Association president Russell White told On3. “And that’s not something that is going to fly. You know now that people understand that athletes didn’t have that right forever. I don’t think it’s something they’re just going to willingly give back. And I don’t see really any mechanism by which they can do that, at least in a legal way.”
With 42 members and roughly 28,000 athletes, the TCA could inform athletes about their options with the House v. NCAA settlement and the impact it could make. The players’ association Athletes.org released a statement calling for schools to partner with athletes. Kessler told On3 in a statement that he supports the efforts to organize athletes.
“It’s one of those things that I think is a huge step if we decided to do it, but it’s something that would be on the table,” White said when asked about the TCA taking a hands-on approach with athletes.
“We’ve been pretty kind of just wait and see, like most people. But we definitely have looked at options, and I think that that would be on the table. It would be more from the standpoint of educating them and letting them know of their options.”
Will the NCAA give in?
Wilken told the NCAA and plaintiffs’ attorneys to “go back to the drawing board” when it came to enforcement of boosters and NIL collectives. The NCAA and its members could be motivated to rewrite the language. The other option is landing a trial date and having the lawsuit tried.
The NCAA will have to reach a consensus to accept changes to enforcement around boosters or accept the reality that if the case is tried, it could be on the hook for $20 billion in back damages.
“It’s somewhat but not entirely surprising,” Boise State sports law professor Sam Ehrlich said. “I think that Judge Wilken’s argument that settlements shouldn’t take away rights that already exist is reasonable, and the NCAA is going to have a lot of work to do to convince her that the language in the settlement doesn’t do that.
“It’s really going to come down to which of the two blinks, if either do, because I don’t see the NCAA agreeing to loosen the language to the degree Judge Wilken wants. It’s clearly a deal breaker for them.”