More than a dozen objections have been filed against the $2.8 billion settlement of antitrust allegations against the NCAA and the nation's biggest conferences — concerns ranging from roster limits and Title IX to what some call an unfair salary cap — but attorneys say they don't see any threats to pushing the industry-changing lawsuit through this year.
The deadline arrived Friday to submit objections to the so-called House settlement, which calls for former athletes to receive millions in back pay and also gives schools the option to distribute up to $20.5 million a year in payments to athletes for use of their name, image and likeness (NIL).
U.S. District Judge Claudia Wilken will have at least 14 objections to review — ranging from letters from soccer players to legal briefs picking apart the entire settlement — before the April 7 hearing she set to consider final approval of the settlement. The schools want to clear the way for the deal to take effect starting with the next academic year.
“We don’t think there’s anything in the objections that hasn’t been known about the settlement, wasn’t raised by others at the preliminary approval process,” said the NCAA's lead counsel on the lawsuit, Rakesh Kilaru. “We don't think there's anything in the objections that will give the judge reason to change her mind.”
Plaintiff attorney Jeffrey Kessler points to the more than 40,000 athletes who have filed claims for damages as evidence of the settlement's strength. Defendants in the lawsuit are the NCAA, Big Ten, Southeastern, Big 12, Atlantic Coast and Pac-12 conferences.
Some of the key topics related to the settlement:
Salary cap
The Justice Department in the final days of the Biden Administration joined lawyers and athletes in arguing the $20.5 million — which represents 22% of TV and other revenue at the biggest schools — amounts to an unfair salary cap.
One of the legal briefs objecting to the settlement called the figure "totally arbitrary.” It also argued that setting limits on what athletes can make violates the very antitrust concerns the settlement was designed to address.
Attorneys who negotiated the deal disagree. They also say athletes can opt out of the class-action settlement to pursue damages on their own, and also that third-party NIL payments that don't count against the $20.5 million would still be allowed under terms of the deal.
“One of the persistent questions is, 'What's your alternative. what's your better solution to this?'" Kilaru said. “We sat down with lawyers who often engage in collective bargaining with sports leagues, who have this exact type of discussion where they represent a group and they vigorously advocate for their interests. And I think what we received at the end of that negotiation on both ends is a good resolution of the antitrust claims and a good, stable state going forward.”
Title IX
How schools navigate Title IX requirements under a new system in which players can make money is not an issue unique to the settlement. The statute is intended to ensure gender equity in education, with broad ramifications, including athletics.
Last-minute guidance from the Biden administration's Education Department suggested that NIL payments from schools should be treated the same as educational benefits — a caveat that could put schools in violation of the law if they pay most of their NIL money to male athletes.
The issue, while daunting, should not be enough to scuttle approval of the settlement, Kessler said.
“I am a supporter of gender equity, but this is an antitrust case, not a Title IX case,” Kessler said. “This settlement cannot resolve the Title IX issues. It's a misplaced forum. If Title IX requires the benefits to be paid in a certain way, the schools will have to comply with Title IX.”
Roster limits
Hundreds of athletes have already lost roster spots on their teams as athletic departments prepare to adhere to a settlement that's still awaiting final approval.
The NCAA, however, views the rules that set new roster sizes while eliminating scholarship limits as a net gain for athletes, even if many rosters will diminish in size, costing walk-ons their spots.
“Prior to the settlement, there were scholarship limits. I think those were often called arbitrary,” Kilaru said. “There were lots of calls to change them and then provide more scholarship opportunities for student-athletes. And in the main, the roster limits that have come about do that.”
Kessler didn't see the objections over roster size as a roadblock to Wilken approving the settlement. He also said the roster limits were determined by the NCAA, not the plaintiffs, as part of the overall settlement.
“This is an issue between the people feeling this way about the roster limits and the NCAA imposing them," he said. “We did agree that the settlement would allow this, and that's because it's a compromise. We can't achieve everything in a compromise."
Back pay
There have also been objections over how the $2.8 billion will be distributed to former athletes who played before NIL payments were allowed starting in July 2021.
Those payments, out of funds coming from the NCAA and the conferences, have been determined via a formula that tried to gauge an athlete's market value. Some of the objections have come from walk-on football players, who aren't eligible for payments, and athletes in small sports who are receiving very small payments.
On that and all the issues, Gabe Feldman, the director of the Tulane Sports Law program who has been following the settlement, said it's no surprise not every party in a class-action lawsuit covering thousands of people is happy and “there is no way to have a perfect agreement.”
He suggested the lawsuit needs to be seen for what it is — antitrust litigation that remains likely to be approved on April 7.
“They don't have the power to create an entirely new model of college sports,” Feldman said. “They don't have the authority to do that, and that's not what they're trying to do. So there are a lot of gaps left to be filled in by the NCAA, and by the conferences.”
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