House settlement faces new challenges with athlete objections

As lawyers for plaintiffs eye Sept. 5 for preliminary approval of the House v. NCAA settlement, a new wave of opposition faces the NCAA and Power Five conferences.

The House settlement paves a new college sports landscape, with schools able to share up to $22 million beginning in 2025-26, if certified. The settlement would also provide a payday for the thousands of athletes who were not allowed to capitalize on NIL, participate in revenue sharing or profit from video games.

Instead of facing $20 billion in back damages, the NCAA and Power Five conferences signed off on a 10-year settlement agreement that includes $2.776 billion in back damages. New scholarship limits are set to be installed, and the settlement would attempt to establish new enforcement in college sports. Judge Claudia Wilken could give preliminary approval to the settlement on Sept. 5, however, she can still deny the full settlement.

Last Friday, former and current rowers at Yale, Oregon State, George Washington and Texas filed an objection to the settlement plus an opposition to the motion for preliminary settlement approval. At the core of the six athletes’ opposition is that the settlement would keep depriving college athletes, specifically female athletes, of their rightful compensation.

The rowers also argued how the settlement would substitute an illegal “cartel,” the NCAA, for another.

“The NCAA,” the objection states, “historically depressed the value of women athletes’ NIL by failing to invest in promoting women’s sports.

“… The settlement simply establishes a new cartel with different terms. A remedy that merely repeats the original illegal conduct is no remedy at all.”

Rowers joined by Fontenot in opposition to House

The rowers are not the only group opposing the settlement. Attorneys for plaintiffs in a separate suit – focused on the role of Ivy League institutions refusing to award athletic scholarships – filed an opposition on Thursday.

And on Friday, lawyers in the Fontenot v. NCAA suit, which is also centered around athlete compensation, filed a complaint. The group also filed a motion for the court to deny the preliminary settlement approval. The complaint spells out that they believe the House settlement would underwhelmingly pay athletes, claiming Fontenot’s claims are worth more than $24 billion.

“To be clear, Fontenot counsel does not object to the concept of a global settlement, but any such settlement requires independent evaluation and zealous advocacy by separate counsel for the fair
pay plaintiffs,” the complaint states. “Counsel for Fontenot repeatedly warned Defendants that it was improper for the same plaintiffs’ counsel to settle all claims at once.

“… In contrast, when valuing the NIL claims, the starting point for negotiations was the full
amount that the movants advocated for in the adversarial process. The fair pay claims did not go
through that adversarial process, and the movants made assumptions favorable for Defendants.”

Crew athletes push back on compensation rates

The rowers argued that while the proposed settlement is set to provide back damages for lost NIL opportunities, broadcast rights and video game NIL, nothing represents lost scholarship opportunities.

Attorneys for the athletes also outlined how the push by the NCAA and Power Five conferences for enforcement around “fair market value” is just fixing compensation for athletes. The proposed settlement spells out that compensation must be “at rates and terms commensurate with compensation paid to similarly situated individuals.”

“Courts have repeatedly held that the NCAA has violated (antitrust law) in fixing compensation that student-athletes can earn,” the rowers’ filing reads. “… Undeterred the NCAA seeks to continue to fix and depress the prices for student athletics.”

The complaint argues that the House v. NCAA settlement is an attempt by the governing body and Power 5 to cut off athletes’ fair employment compensation claims at a bargain price. Employment has remained a top concern for the NCAA. The House Committee on Education and the Workforce moved the Protecting Student Athlete’s Economic Freedom Act to the House floor in June.

The bill would codify athletes are not employees of an institution, conference or association.

“While the athletic services claims have not yet been fully explored, there is every reason to think that settling them now for just $600 million leaves enormous value to the Class on the table,” the rowers’ filing states.