A settlement contract that, if approved by U.S. District Judge Claudia Wilken and withstands potential legal challenges, had ushered in a new and more professionally developed age of university sports is most likely by Thursday. The NCAA’s energy conferences and the board of governors may have approved it.
But as explained below, there are many ways the colony could collapse before it materializes or reproduce new constitutional problems for the NCAA.
What we know is as follows. The SEC, Big 10, Pac-12, and NCAA board of governors are all expected to follow coat, and the ACC and Big 12 have now voted to approve the agreement.
Although many details remain unsettled and are subject to change, the settlement is expected to be worth about$ 2.7 billion. Over the next ten years, it will be funded by the NCAA and its member institutions through a combination of payment made by the institutions and those that have been withheld from institutions. As well as forgone income from video game not published and TV money that was not shared with people, sports may get paid varying quantities based on estimates of what they would have earned in NIL prior to the NCAA allowing NIL in 2021. Going forward, events can settle into arrangements where profits are shared with people.

Former Arizona State swimmer Grant House, former Oregon and current TCU basketball player Sedona Prince, former Oklahoma State ( now Carolina Panthers ) football player Chuba Hubbard, former Auburn track and field player Keira McCarrell, former Duke ( now Buffalo Bills ) football player DeWayne Carter, and former Stanford soccer player Nya Harrison all brought antitrust cases under the settlement.
Although these cases raise different issues, the NCAA and its members have essentially broken the antitrust law by conspiring to impose limits on what a conference or school can pay athletes and preventing other parties from obtaining compensation for athletes ‘ NIL and broadcasting rights, according to their core thesis.
Put more bluntly, the cases argue the NCAA’s longstanding model known as “amateurism” is illegal.
A settlement will require the NCAA to abandon its long-cherished amateur system and switch to something more equating to pay-for-play, even though it wo n’t make an admission that it is breaking any laws.
The caveats are now.
1. The Settlement Won’t Be a Settlement, at least for the time being.
Although the conferences and the NCAA are casting ballots on what is being called a settlement (yes, our headline also uses that word ), it should be read as a term sheet.
A term sheet is a statement saying there is agreement on certain concepts and on some details, but that work on final details remains. A term sheet is typically not regarded as binding, as evidenced by recent litigation involving former LSU head football coach Ed Orgeron and at issue in a new lawsuit brought by Fanatics against Arizona Cardinals wide receiver Marvin Harrison Jr. It is merely an agreement to agree, as judges have stated.

In the months ahead, the parties will need to sort out the details —and they are far- reaching. Although there are general guidelines in place for how the settlement will be funded, specific details, such as difficult choices regarding the amount of money that each school will need to pay, must be made.
Expect pushback once schools realize the true cost they are facing. Keep in mind, many schools are already worrying about finances given that the college- age population in the U. S. is projected to drop from 2025 to 2037 due to declining birth rates. Some schools are already making tuition, housing, meal plans, and student fees less affordable. There could n’t have been a worse time for the costs of athletics to rise.
The interplay between NIL and revenue sharing in the settlement is also unknown, a point of particular importance since sharing of broadcast and video game money for the use of players ‘ images, likenesses, names and other personal features is a version of NIL. The attorneys will want a player’s voice in the resolution of the issue, and the rules for baseball caps are also unclear.
It’s possible that serious disagreements prevent the settlement’s conclusion and the deal from being finalized before it is even presented to Wilken in months.
2. Wilken’s Reviews, Opt-Outs, and Appeals
If the parties come to an agreement, Wilken will approve it if they do so.
Wilken would review the terms to ensure they are fair, reasonable and adequate to the class members expected to get paid, a group of about 14, 500 current and former Division 1 athletes, according to court documents. The 74-year-old judge will then examine how the settlement mathematically determines how much money each athlete will be paid and, more importantly, why a particular mathematical formula was chosen in place of alternatives.
Class members who participate in various sports at various schools are not expected to receive equal pay. An athlete’s share will depend on, among other factors, how much NIL money and telecast monies they likely would have earned had the NCAA allowed such compensation, with that system favoring football and basketball players over other athletes. Although it’s impossible to go back in time and know precise amounts, Wilken will need to be convinced that the chosen formulas are fair and reasonable.
Wilken will also inquire as to how class members will be made aware of their obligations and the payment schedule. She’ll also want clarity on how class members can opt- out of the class. A relatively small number of participants in large class actions typically choose not to file a lawsuit against the defendant. In other words, current class members may still be subject to antitrust lawsuits brought by the NCAA and power conferences. Other sports class actions, including the NFL concussion settlement, have seen some class members opt out.
Wilken will also take into account player objections to the settlement, such as those who think the compensation system is ineffective or opaque. Players in the class could bring legal challenges to the agreement to the U.S. Court of Appeals for the Ninth Circuit and, potentially, the U.S. Supreme Court. That happened with the NFL concussion settlement, which was eventually cleared by the U. S. Court of Appeals for the Third Circuit and the Supreme Court.
If Wilken determines that the settlement is insufficient, she will reject it and direct the parties to return to the negotiation room. She approves the settlement more likely than it does after she demands changes or during initial review.
3. Implementing the Settlement, Athlete Voice, and Attorney Pay
If she consents, Wilken will create a system to guide the settlement’s implementation. The judge could pick herself to oversee implementation ( at least in the initial phases ) or appoint another person with legal background and relevant expertise to administer. The settlement terms would function as a new NCAA rulebook, and that person could de facto control how college athletes are paid.
Players should have some say in how the settlement is implemented, but keep in mind that because they are not (yet ) recognized as employees, their interests will most likely need to be communicated through attorneys. This is an imperfect and arguably undemocratic model that could present implementation challenges, especially if athletes feel they were misled.
Wilken will also consider the amount of compensation the players ‘ attorneys will receive, a decision that may be upheld by the Ninth Circuit. According to Sportico, attorneys in class action settlements typically receive a pay cut of between 25 % and 35 %. Here that could mean in the ballpark of$ 700 million to$ 900 million. Courts may, however, require a smaller share when the amounts anticipated to be received by class members would outweigh the proposed attorneys ‘ share. Wilken will request as many details as possible.
4. The NCAA is n’t providing legal assistance to other plaintiffs.
The NCAA will likely interpret the settlement as a resolution to years of litigation, including the loss of significant cases brought by Ed O’Bannon and Shawne Alston.
The problem with that narrative: It’s wrong.
Players could opt out of the settlement and file a lawsuit first. This settlement cannot stop other litigation, even if that does n’t occur. Although of sizable importance in college sports, the settlement will be a mere contract between private parties. The settlement wo n’t have any impact on parties outside the contractual relationship because it wo n’t establish legal precedent. Since none of the settlement terms have been collectively agreed, the NCAA is still subject to antitrust lawsuits. Although the NCAA has lobbied Congress for an antitrust exemption and maybe believes an athlete- pay settlement would show goodwill, the NCAA has been lobbying for an exemption for years and no bill has ever advanced.
Attorneys for players requesting employment recognition could also use the fact that athletes will now be paid directly as proof of an employment relationship. Although the NCAA may still refer to the athletes as” student- athletes,” that contentious moniker may starting to appear as form rather than substance.
There’s also Title IX to consider. The NCAA and schools should adopt a system to resolve antitrust claims, but this would lead to Title IX lawsuits as a result. Within the meaning of Title IX, any system that pays players must be run in a manner that is fair on the basis of sex. There are different ways to comply with Title IX, but there are also seasoned Title IX attorneys who could find, for example, higher pay to college football stars than women basketball players to reflect a Title IX problem. They might also argue that wages are used as employment evidence, which adds to the conflict between Title VII and Equal Pay Act claims.
5. Settling Over Litigating Might Become an Epic Mistake
The NCAA’s attempt to minimize risk is at the heart of the framing of the settlement. House potential damages could exceed$ 4 billion, according to the NCAA, which somehow jumped from$ 20 billion in some recent media coverage. Cutting a deal to avoid paying$ 4 billion ( or$ 20 billion ) makes sense, of course.
However, that analysis leaves out a number of fragile conceits that could eventually cause the NCAA and its affiliated institutions to reconsider their decision.
If the NCAA had gone to a jury trial in the House next January, it would have 1. lost, 2. been ordered to pay at least$ 4 billion, 3. failed to persuade the courts to lower a high damages figure, and 4. lost an appeal to the U.S. Court of Appeals for the Ninth Circuit and possibly a second appeal to the U.S. Supreme Court.
It’s not as if the NCAA lacked potentially persuasive legal arguments that might have resonated with judges.
Courts have determined that compensation for college athletes by institutions like the Ninth Circuit must be tied to education, a rule that could have had an impact in court. In NCAA v. Alston, the Supreme Court decided 9-0 against the NCAA, but the issue was not about paying athletes to play sports or how they could use their NIL. It was about a relatively peripheral issue in college sports: caps on individual school reimbursements for athletes ‘ education- related expenses. Additionally, he was the only justice to sign Justice Brett Kavanaugh’s concurring opinion in Alston, which suggested the amateurism system was a cartel. How the other eight justices would have decided differently if Alston had ruled on compensation for sports or the use of NIL.
The antitrust litigation also relies on speculation, including ballpark estimates about how much athletes might have earned for NIL, video game and telecast monies. Some of those athletes may not have played in the same colleges or even competed in Power Five college sports. Some college athletes might have stayed in school longer than gone pro, changing roster compositions, in a world where NIL and broadcast money are given to them. Some athletes who flunked out might have studied more if they were incentivized by being paid, which also would impact who played for whom. Those are the questions that judges will likely consider.
There’s also the possibility that a brand-new college sports world will turn off fans. Will college sports lose its distinctive quality and seem more like a minor league? The NCAA’s refusal to allow athletes to receive pay has long been its main concern. Although research indicates that college sports have only increased in popularity among NIL, it seems that a world where college athletes have more resemble professional athletes confirms concerns raised by previous NCAA leaders.
Then there’s the risk of internal fallout for the NCAA. The settlement’s administrator, Charlie Baker, the head of the NCAA, might have greater authority. Additionally, it’s possible that an NCAA member’s school can bring a legal challenge to the agreement’s implementation. There has been no shortage of complaints aired by leaders and administrators at schools that the settlement seems unfair or at least the rush to settle is problematic. About 60 % of the$ 1.6 billion price tag is anticipated to be paid for non-Power Five conferences.
These institutions may object to Wilken, and they may also file restraining orders in court to stop the settlement’s implementation. The schools could argue the settlement process is relying on a voting procedure that is outside of any known rules—or rules they contractually accepted in their NCAA and conference membership agreements. The NCAA would likely argue that as members of the NCAA, they are generally required to consent to decisions made in court cases, but a discussion over applicable rules could turn into a contentious one.
Finally, some colleges or conferences may decide to drop varsity sports for club sports or even leave the NCAA altogether, especially those where revenues are modest and athletes are n’t pro prospects. Although those outcomes seem unlikely at this moment, nothing is off the table, just like in any negotiation.