The NCAA’s contentious decision to live the House, Carter, and Hubbard competitive litigations faces numerous challenges.
Simply request Houston Christian University.
Last Thursday, the D1 institution, which produced New England Patriots QB Bailey Zappe and Jacksonville Jaguars LB Caleb Johnson, moved to join the House dispute.
The purpose: HCU says it was n’t consulted during the offer- making and argues the words will “adversely change” its 2, 300 undergraduate students and society.
In a seven- page memorandum to presiding judge Claudia Wilken, HCU accuses” the defendants “—the NCAA and power conferences—of failing to take “any step” to protect the university’s interests. While HCU and other D1 schools would be on the hook to pay part of the settlement’s roughly$ 2.7 billion tab, neither HCU nor its conference, the Southland, “had a seat at the negotiating table, or had any input into any resolution of this matter, including the proposed settlement”.

HCU’s grievances highlight the problematic responsibilities that power conferences and the NCAA play as the parties in a settlement that awards costs to HCU and other non-defendants.
If the NCAA’s board of governors were authorized to approve settlement terms in a case where DI schools are not defendants and where the majority of D1 schools are not members of defendant conferences, the latter could become the subject of numerous legal disputes. According to the HCU’s brief, the school may not have had enough time for adequate notice and comment.
As to the power conferences, their interests are often not aligned with smaller conferences. Power conferences enjoy lucrative media rights agreements and feature games that are played by well-known and highly successful players. Additionally, their schools have the resources necessary to adapt to the increasingly professional sports-like environment of college sports.
Most of the more than 350 DI schools do n’t fit that description. The smaller conferences typically have n’t pro prospects or secure lucrative NIL deals, and their athletes typically have comparatively modest media rights agreements.
Expect Wilken to consider whether the majority of the schools impacted by the settlement were denied a seat at the table and had their interests traded off to the attorneys of the settlement to secure a settlement.
But it’s not a done deal. A lengthy form agreement, or long-form agreement, is still being negotiated by the NCAA, power conferences, and players ‘ attorneys, which Wilken would review. To date, the parties have only agreed on principal terms.
The agreement’s principal terms, which are relevant to HCU, reportedly cover non-power conferences and their member schools absorbing about$ 990 million in costs over a 10-year period. That money would be used to pay athletes for compensation they would have earned in NIL prior to the NCAA approving NIL in 2021, as well as for lost earnings from video games that had never been released and TV money that had not been shared with players. Their attorneys would receive a healthy cut for this.

The settlement also envisions schools being able to opt into a direct, athlete- pay system. While adhering to a salary cap of about$ 21 million, participating schools would receive up to 22 % of sports revenue from media rights, ticket sales, and sponsorships. The rules wo n’t be collectively bargained with a union, so they could face antitrust challenges from those outside the settlement, which is similar to a pro league.
HCU contends that the defendants do n’t represent its interests at the bargaining table, claiming that 95 % of its students are receiving financial aid. The college complains that the settlement was presented to colleges as a “faux accompli,” without regard for the negative effects these institutions might have had.
HCU claims that the settlement would force the university, officers, and trustees to “violate their fiduciary duties” under the law in a move that could lead to a potential legal claim against the NCAA and power conferences. In order to prevent the implementation of a settlement that would require school officials to violate their obligations, HCU might later request a restraining order.
Those duties connect to money.
According to HCU, the settlement would” cause the divergence of funds from HCU’s and other similarly situated institutions ‘ fundamental academic objectives at the expense of the primary educational duties of educating students and conducting research.” HCU contends that it and other similarly situated schools should n’t be required to pay “damages” for athletes ‘ NIL and should n’t be forced to “divert development efforts away from core academic missions and reallocate funds to athletics programs already deeply owed”
There are counterarguments. The NCAA could insist that all D1 schools, who vote on NCAA rules, are responsible for amateurism rules that led to the lawsuits. HCU was a member of the NCAA at the time the allegedly illegal behavior took place. Additionally, the association would have requested that member schools contribute their share of the bill if the NCAA had gone to trial, lost, and been ordered to pay billions of dollars in damages. From that lens, the NCAA could insist that even if member schools were n’t named names, they are still parties in the litigation.
The school will have a voice in upcoming settlement hearings and formally object if Wilken grants HCU’s request to intervene.
Do n’t be surprised if other schools join HCU as intervenors. HCU likely makes it simpler for other schools to do the same because it is the first to challenge the NCAA.
To that point, HCU’s situation is hardly unique. HCU must worry about higher costs for athletics and the looming “enrollment cliff” at the same time as most other colleges in America. The birth rate in the United States is projected to decrease over the next ten years as a result of the Great Recession’s impact on the population. Colleges are concerned that as they compete for a smaller group of students, who will use bargaining leverage to bargain for higher discounts on tuition and other concessions that lower revenues. It’s a terrifying combination to have the athletics cost significantly more as the enrollment cliff approaches.
Under Federal Rule of Civil Procedure 23 ( e ) ( 2 ), Wilken must determine if the settlement is “fair, reasonable and adequate”. She will consider HCU’s objections, as well as those raised by other schools, conferences or players. The settlement process was procedurally flawed or otherwise ineffective, according to each group, and the compensation scheme is inadequate or unclear. Wilken may worry that the settlement is not representative of the industry if many players opt out of it.
It’s not all that difficult to get a settlement approved. Judges can reject settlements for “going too far” in restricting an industry, Sportico explained in a discussion on a judge rejecting the Google Book Settlement in 2011. In a more recent example, the judge overseeing the proposed settlement for UFC fighter pay recently expressed concerns and demanded more details and justification. While much of the media coverage of the NCAA antitrust settlement implies it’s a done deal, Wilken, not the NCAA or plaintiffs ‘ attorneys, is the decider. Given that Wilken has oversaw this area of NCAA antitrust litigation for the past 15 years, starting with Ed O’Bannon’s lawsuit, she has undoubtedly formed strong opinions regarding a fair and appropriate resolution.
Even if Wilken approves the settlement, approval would n’t immunize the settlement from further legal scrutiny. Numerous stakeholders have the right to file a lawsuit against it before the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit.
A U.S. district court judge had approved a settlement agreement between Johnson &amp, Johnson sunscreen products, and the U.S. Court of Appeals for the Eleventh Circuit last Friday. While the attorneys were going to be paid, consumers who were covered by the settlement were supposed to receive coupons. The Eleventh Circuit accepted the objections made by Hamilton Lincoln Law Institute attorney Ted Frank. Although the facts and laws presented in In Re: Johnson &amp, Johnson Aerosol Sunscreen Marketing, Sales Practices, and Products Liability Litigation differ from those presented in the NCAA cases, it illustrates how settlements lose validity after passing several checkpoints.