In aftermath of House settlement, here are the most important remaining questions

With the NCAA Board of Governors approving settlement terms in the landmark House v. NCAA case, the agreement is expected to usher in a historic revenue-sharing model for college sports.

But even in the aftermath of the momentous settlement agreement – which still needs to be certified by U.S. District Judge Claudia Wilken in the coming months – college sports will remain very much an unsettled landscape.

The settlement will touch off a host of questions related to the implementation of a revenue-sharing model, gender-equity issues, ramifications for donor-funded NIL collectives and, most significantly, any protection from further lawsuits.

Here are the most immediate pressing questions that must be addressed in the aftermath of the House settlement:

Does this mean settlement is officially approved?

No, not at all.

In the coming months, Wilken will still need to certify the agreement. In addition, athletes in the case’s represented classes will be given the opportunity to opt-out of the settlement, thus preserving their right to challenge the NCAA legally.

Wilken is the same judge who ruled against the NCAA in O’Bannon and Alston at the trial court level. If there are aspects of the agreement that raise red flags, she will balk — and could ask the parties to amend any elements.

With plaintiffs and defendants agreeing to the significant settlement terms, it will clear a huge hurdle. But Wilken must still certify the deal, which is expected to usher in a revenue-sharing model no earlier than 2025.

Does settlement provide NCAA legal protection?

This is the big question, and why there’s been pushback among some administrators in the lead-up to the settlement.

There are a few clear ways in which the NCAA can secure legal protection. It can enable athletes to collectively bargain compensation and benefits. That can be done through an employment model with unions and collective bargaining units, much like we see in professional sports.

But the NCAA has remained in staunch opposition of such a model.

Here’s another option: a hybrid concept that’s become known as the Jack Swarbrick idea, referencing the former Notre Dame athletic director who endorsed this concept in the fall. It entails Congress granting a special status exemption for athletes, thus giving them collective bargaining power but stating they are not employees of their schools, conferences or the NCAA.

Lastly, the NCAA could finally secure its long-sought antitrust exemption from Congress. There has been no significant traction toward that end thus far, but their efforts continue.

And here is a twist: the two-page “basic settlement summary,” a copy of which was obtained by On3, details that plaintiffs could cooperate with the NCAA in lobbying efforts in pursuit of the antitrust exemption.

Who will foot bill for damages?

This has been a source of contention in college sports.

The NCAA and all 32 Division I conferences will share the financial burden for the $2.77 billion owed to athletes over the next 10 years. Conferences will be on the hook for $1.6 billion of that total damages bill.

Power leagues will pay 40% of that $1.6 billion, while 60% will fall to conferences outside the Power Five. There has been considerable frustration and pushback in the non-P5 ranks over the payment model in large part because they are not the named defendants (NCAA, power conferences) in the case.

It has spurred Big East Commissioner Val Ackerman to voice what she termed “strong objections” to the proposed damages framework in recent emails to NCAA President Charlie Baker and his legal counsel.

It prompted the group of 22 commissioners outside the FBS ranks to propose an alternate damages framework, which would have shifted the percentage of the damages bill that falls to power leagues to nearly 60%.

“We have not been involved in the settlement negotiations or damage allocation modeling, and learned of the settlement status two weeks ago,” reads a letter from the 22 commissioners to several NCAA governing boards, a copy of which was obtained by On3.

These appeals to alter the payment model for damages proved futile. 

What happens to other lawsuits against NCAA?

This is a global settlement, which means it settles three high-profile cases: Carter, Hubbard and the House case. 

Carter v. NCAA alleges that rules prohibiting schools from paying athletes violate antitrust laws, and Hubbard v. NCAA relates to retroactive Alston payments to athletes.

According to the settlement summary document shared with university leaders, the NCAA could potentially owe $20 billion in damages. But there was no elaboration, leaving some legal experts unclear about the validity of that figure.

What we do know is that the NCAA and power conferences could have been on the hook for $4.2 billion if they took the case to trial in January and lost. In the document, stated without elaboration, damages related to the Carter case could have eclipsed that of the House case.

Where does Title IX fit into this new world?

The 52-year-old federal law that protects students from sex-based discrimination at any school that receives federal funding stipulates schools must provide male and female student-athletes with equal treatment and benefits.

What will that mean in a new world in which schools can potentially share some $22 million with athletes? Even among legal minds, there is no consensus.

“There is not a clear answer on whether Title IX applies to market-based payments to college athletes, whether those payments are for NIL rights or athletic performance,” Mit Winter, a college sports attorney with Kennyhertz Perry and board member for the players’ association Athletes.org, told On3. “You’ll get different answers depending on who you talk to, and there are legal analyses going both ways.”

Bay Area-based Arthur Bryant of Bailey & Glasser, LLP – who has represented more women athletes in Title IX litigation against schools and universities than any lawyer nationwide – said that institutions, conferences and the NCAA need to be aware that whatever revenue-sharing model is implemented, Title IX requires that female and male student-athletes receive equal treatment and benefits.

“If 60% of the student-athletes are women and Title IX applies, they basically need to receive 60% of the revenue-sharing dollars shared,” said Bryant, who is currently representing current and former Oregon athletes in a class-action Title IX lawsuit. 

Does settlement portend end of collectives?

The NCAA has been trying to get its arms around donor-led collectives for nearly three years.

But the most ambitious, most well-funded collectives aren’t going anywhere. It is possible they could ultimately move in-house, under schools’ umbrellas, although that scenario would raise a host of Title IX concerns.

By remaining third-party entities outside of the university umbrella, several industry sources foresee an important role for collectives in a revenue-sharing world. They believe collectives will be well-positioned to provide additional compensation to specific high-profile athletes, revenue that is separate from the school’s revenue-sharing model.

This will allow the most marquee athletes to receive their market value in dollars, and in a way that is not subject to Title IX requirements.

What does this mean for employment proceedings?

The spotlight on the National Labor Relations Board cases now becomes even brighter.

The NLRB is deciding whether it will review a regional director’s Feb. 5 decision that Dartmouth men’s basketball players are employees of their university. In March, the athletes voted to unionize, a historic move that could open the door to collective bargaining.

Dartmouth has requested the NLRB review Laura Sacks’ Feb. 5 decision. Even if that review is not granted, Dartmouth could appeal to a federal court. The process could be lengthy and potentially land in the U.S. Supreme Court.

Even more significant, an administrative law judge in Los Angeles is weighing whether USC is an employer of its football and men’s and women’s basketball players. The particularly noteworthy part is that the Pac-12 and NCAA are also charged with being joint employers. 

The National Labor Relations Act governs private institutions. But if the Pac-12 and NCAA are found to be joint employers, this could open the door to athletes at public institutions being deemed employees as well. 

The process will be lengthy but carries enormous implications.

Where is line of demarcation in college sports?

It is important to remember that revenue sharing is permissive legislation, which means schools have the option to take part.

That said, everyone knows that failing to take part virtually ensures failing to remain competitive on the field or the court in this cutthroat world of trying to recruit the best athletes.

The biggest brands in college sports, the ones with $200 million-plus budgets, are all in. There will be many schools that don’t fall into that category but will do what they can to keep pace.

Even Texas A&M chose to cut staff recently in preparation for a new world order. Missouri included a provision in its athletic director’s contract that when/if college sports’ financial model changes, that compensation will be renegotiated. And Iowa State halted plans for a new wrestling facility amid the inevitability of a new business model.

Schools will need to reduce expenses.

Iowa State Athletic Director Jamie Pollard said, with permissive legislation, “You don’t have to do it, and, quite frankly, from talking to most of my peers, most of us have no idea how we will do it.”

Pollard knows he has a $100 million budget and can see the only way to give $20 million to athletes is only to spend $80 million. 

“I don’t know where we’d get rid of the $20 – at least overnight,” he said. “That’s the million-dollar question or the $20 million question for all of us.”

The question is how many schools below the power conference level are willing and able to share dollars with athletes. How many schools are in the American Athletic Conference? Or lower on the food chain, the Big Sky, etc?

This much is certain: The gap between the haves and the have-nots in college sports will grow wider and wider.