Judge rules Fontenot v. NCAA case will proceed outside of House settlement

All eyes today were on court proceedings in Colorado that would determine whether another antitrust case confronting the NCAA – a lawsuit referred to as Fontenot v. NCAA – would be consolidated with a similar antitrust case in Northern California.

If a judge had consolidated the Fontenot case with Carter v. NCAA, it would have meant that the NCAA and power conferences would be on the brink of a global settlement that would essentially end four antitrust cases: House, Carter, Hubbard and Fontenot.

A judge in Colorado had different ideas.

In a significant ruling, Judge Charlotte N. Sweeney said Thursday that the case would remain in Colorado and proceed outside of the House settlement.

The plaintiffs’ attorneys in the House case have no concerns that athletes will opt-out of the House settlement in the wake of the judge’s ruling today regarding the Fontenot case.

“None,” Steve Berman, co-lead counsel for the plaintiffs in the House case, told On3 Thursday afternoon. “It’s only continuing on a short-term basis. Judge made it clear that if there is a settlement going forward she won’t allow the case to continue. She can’t, as a basic bedrock rule, of law allow a case to go forward that’s been released by another judge.  So that case is alive for a nanosecond.”

In terms of potential athlete opt-outs in the House settlement, under the settlement $2.8 billion will be distributed in damages and as much as $2 billion per year moving forward – escalating as revenues go up – for a 10-year period.

“So an athlete who opts out forgoes all of this and has to decide can they do better?” Berman added. “And must do so on an individual basis and not as a class. That’s a huge risk to take and a hugely expensive case to litigate. I think it would be irresponsible to advise an athlete to opt out in the hopes of getting more money.”

Following the ruling in Colorado, Boise State sports law professor Sam Ehrlich told On3: “I’ll be really curious to see whether other athletes – now that this case represents an alternative – join up with this class rather than opting into the House settlement.

“Maybe it stays small, but if anything this certainly weakens the idea that the House settlement represents an end to antitrust litigation against the NCAA over amateurism rules, and bolsters any dissent (to the extent it exists) on the athletes’ side against the settlement. That can’t be extremely comfortable for the NCAA to hear on the day that I’m sure they were looking to start moving closer towards the settlement.”

At the moment, a settlement in the historic House case remains on track. The NCAA Board of Governors joined three power conferences – the Big Ten, ACC and Big 12 – in approving settlement terms this week. The SEC and the Pac-12 are also expected to approve the agreement today.

But in the coming months, U.S. District Judge Claudia Wilken will need to certify the agreement. And athletes in the represented classes in the House case will be given the opportunity to opt-out of the House settlement.

Alex Fontenot, a former football player at Colorado, filed the class-action lawsuit against the NCAA and power conferences, alleging that NCAA rules that prohibit athletes from receiving compensation from schools and leagues violate antitrust law. The complaint alleges that NCAA conferences and member schools “are raking in billions in television and other revenue without sharing a dime of it with the athletes.”

“This lawsuit aims to change that,” states the complaint, which was filed in U.S. District Court in Colorado. “It focuses on the ever-increasing television revenue and other revenue brought in by these athletes’ labor, of which the athletes would be entitled to receive a substantial portion, but for the NCAA’s rules.”

The case is similar to the Carter case, which alleges that the NCAA is in violation of antitrust law by prohibiting athletes from receiving pay-for-play compensation. 

Plaintiffs’ attorneys wrote in a court document filed Tuesday that, given reported details of settlement terms in the House case, it seems likely that one or more of the named plaintiffs here will opt out of any such settlement to continue to litigate their claims in this case.

“And based on skepticism expressed in press reports, plaintiffs expect that many other athletes will opt out as well and could seek to join this case to seek better and fairer terms for athletes … ,” the filing stated. “This case can – and should – move forward in this Court. And it can do so without any concern of inconsistent rulings or duplicative discovery because no discovery or rulings will be taking place in Carter.”

On Thursday, the judge agreed that the case would move forward.