Judge Wilken Grants Preliminary Approval to the House v. NCAA Settlement

As discussed in our prior Alerts (including on June 6, August 1, and September 6, 2024), three major class action antitrust lawsuits brought against the NCAA: House v. NCAAHubbard v. NCAA, and Carter v. NCAA — all from athletes claiming the NCAA violates the Sherman Act—reached a preliminary settlement agreement that has been pending before U.S. District Court Judge Claudia Wilken. Following the Court’s September 5, 2024 fairness hearing, where Judge Wilken raised various concerns regarding the settlement’s language relating to the NCAA’s efforts to limit athlete compensation from outside entities required the parties, Judge Wilken ordered the parties to go back to the drawing board to respond to her concerns. To that end, the parties filed a revised settlement proposal that included the elimination of the term “booster” from the settlement and further clarified that NCAA enforcement of pay-to-play rules regarding NIL would be limited to review of deal with people and entities who are closely affiliated with schools—which was defined in the settlement as anyone who provided more than $50,000 to a school.

On October 7, 2024, Judge Wilken granted preliminary approval to the revised version of the multi-billion-dollar settlement of these three antitrust lawsuits. Based on Judge Wilken’s concerns at the fairness hearing, many thought that the Judge would schedule another hearing before ruling on the revised settlement and/or issue an opinion explaining why the newly proposed language was satisfactory, particularly because the restrictions on third-party NIL deals remained largely unchanged from the original version. Judge Wilken did not do so and simply granted the revised settlement proposal and issued a schedule for how the case will proceed.

Importantly, Judge Wilken’s grant of preliminary approval does not mean she will grant final approval.  The class action process will now allow individuals to file objections to the settlement and athletes to opt out of the class. Additionally, there is a real possibility that any approved settlement could be challenged at the U.S. Court of Appeals for the Ninth Circuit and then at the U.S. Supreme Court.  The grant of preliminary approval does, however, indicate that Judge Wilken believes that these issues can be resolved through a court settlement. In any event, and no matter what happens with the final approval of the settlement, it can’t stop labor and employment lawsuits (including Johnson v. NCAA and Fontenot v. NCAA), NLRB charges (including those involving Dartmouth and USC athletes) and lawsuits brought under Title IX.

College athletic departments will likely now (if they haven’t already) begin acting fast to implement their revenue share plans, because college athletes will begin negotiating their 2025 revenue share agreements during this upcoming recruiting portal season (December 2024 for college football).

Key upcoming dates include:

  • January 31, 2025 for opt-outs and objections;
  • March 3, 2025 for the parties’ deadline to respond to objections; and
  • April 7, 2025 for the Final Approval Hearing (which coincides with the 2025 Men’s March Madness Basketball Championship)

As the settlement process continues, schools, collectives, athletes, and any other party involved in college athletics should monitor these developments and speak to legal counsel to ensure they have a full understanding of, and stay current on, all rules, laws, and guidance.

Houston Christian University Raises First Substantive Challenge to the House v. NCAA Settlement

Houston Christian University (“HCU”) recently moved to intervene in the potentially historic antitrust settlement between the NCAA and current and former college athletes. The proposed settlement involves the NCAA, conferences, and member schools paying $2.8 billion to college athletes to resolve alleged antitrust violations related to compensation to the athletes for their name, image, and likeness.  In addition, the NCAA and its Power Five conferences (the Atlantic Coast Conference, Big Ten Conference, Big 12 Conference, Pac-12 Conference and Southeastern Conference) agreed to allow their student athletes to receive pay directly from the universities they compete for—a complete departure from the NCAA’s long-standing system of “amateurism.” The settlement agreement is pending approval by Judge Wilken in the Northern District of California where the cases are pending.

In its motion to intervene, HCU argues that its financial interests were not adequately represented during settlement negotiations. HCU argues that the settlement will unfairly “divert funds from academics to athletics” and will negatively impact all of its students.  HCU’s argument is consistent with the majority of the criticism facing the proposed settlement—that the Power Five conferences and NCAA were the only parties at the negotiating table while non-Power Five schools will be on the hook for some of the settlement proceeds. The current settlement proposal apportions the $2.8 billion as follows: 24% from the Power Five conferences, 10% from the Group of Five conferences, 13% from Football Championship Subdivision schools, and 12% from Division I schools without football programs). HCU and other potential interveners in the proposed settlement could result in Judge Wilken denying the proposed class settlement as currently structured.

When Athletes Retire, Is the Next Step Bankruptcy or Paradise?

The “paradise” stories for the post-playing careers of professional athletes are without a doubt under told. The success of Roger Staubach in building a real estate empire, the multiple businesses of NBA all-stars Magic Johnson and Jamal Mashburn, as well as success in politics by the likes of Steve Largent and Bill Bradley, are known to some. Also, consider the Super Bowl’s most valuable player, Joe Flacco, the proud recipient of a $120.6 million contract, alongside option bonuses of $15 million and $7 million, and superstar Ray Lewis, who, in retirement, has recently joined a new team: ESPN. Let’s not leave out baseball, with Alex Rodriguez in the midst of a $275 million contract running through 2017. Then what?

This recent Alert takes a look at what comes next for athletes after their playing days are over, and how they can avoid unhappy endings.

Olympians Strike Back: What’s News–and What’s Advertising–in the Age of Infotainment and Celebrity?

Celebrity is a currency of great value. TMZ, Entertainment Weekly, E!, and innumerable gossip websites and publications prove the point beyond dispute. A group of Olympians including Mark Spitz, Greg Louganis, Jackie Joyner-Kersee, and Amanda Beard have sued Samsung Corporation for using their image to endorse the company without their consent. So, it’s not uncommon that commercial advertisers want to push the edge of the envelope and find ways of using the names, likenesses, and other indicia of celebrities (without obtaining their permission and without paying them) in order to get the attention of us, the consumers.

Partner Mark Fischer explores the often blurry lines between news and commercial endorsement in this blog entry from the New Media and Entertainment Law Blog.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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