As U.S. District Judge Claudia Wilken weighs whether to approve a multibillion-dollar lawsuit that would end the House, Carter, and Hubbard competitive disputes and completely reorganize “big day” school sports, class activity plaintiffs, power conferences, and other legal entities are battling efforts to thwart their agreement.
On Friday, attorneys Rakesh Kilaru ( for the NCAA and conferences ) and Steve Berman ( for the plaintiffs ) filed briefs urging Wilken to reject recent objections filed by crew athletes, Ivy League athletes and DI athletes who are waging antitrust litigations in Colorado.
As detailed by Sportico, those objectors raise different arguments but in short contend the settlement would: 1 ) grossly under-pay athletes, perhaps by tens of billions of dollars, and at rates much lower than the minimum wage, 2 ) perpetuate sexism by paying male athletes much more than female athletes, and 3 ) destroy legal claims raised in other cases against the NCAA.

Kilaru describes the complaints in his brief as presenting absurd and illogical principles. He claims that the lawsuit will give athletes” substantial compensation” in the form of$ 1.98 billion to settle NIL statements and$ 600 million to settle more compensation claims. Kilaru contends that the dissenters have made “opportunistic quarrels” that “ignore the severe risk of litigation,” including the” significant risk of the courses recovering nothing.”
Kilaru also warns that work to more precisely account for variations between the more than 350 schools in DI athletics, their teams, and athletes, had become impossible, cumbersome, and potentially destructive for athletes.
Among other assertions, Kilaru notes that 97 % of DI programs “have expenses that exceeds their revenues when excluding universities subsidies”, that at most schools, sports is the “only plan” that generates “positive online profit” and that schools “vary dramatically” in “level of specific benefits”, but schools also offer scholarships and more benefits to athletes other than the basketball players. Kilaru makes the case that the settlement is logical and addresses a complex fact pattern, even though it may not be perfect. In order to achieve this, Kilaru blasts the objectors ‘ attorneys for failing to” a working economic model capable of determining whether and which student-athletes at each of these hundreds of schools would have been injured” or “even describe how one could be generated.”
In his brief, Berman struck a similar chord. He contends the objectors, who Berman asserts have “virtually no experience challenging NCAA compensation rules”, have badly misdescribed the settlement. He states the settlement does not release: future antitrust claims, Fair Labor Standards Act and other labor law claims, claims challenging the Ivy League’s no scholarship rule, or gender discrimination and Title IX claims. Additionally, Berman adds that the athletes will receive compensation that is” comparable to what” they might receive at trial, but only after more years of litigation and an uncertain outcome.

Wilken will hold a hearing on Sept. 5 to evaluate whether to grant preliminary approval. In federal antitrust class actions, judges typically grant preliminary approval. Wilken may ask the parties to consider making changes, but she is likely to do so.
Wilken’s receipt of preliminary approval would n’t indicate that the agreement has been reached. Preliminary approval would lead to a final approval process which would involve, among other steps, a fairness hearing, where athletes who object can explain their objections. Additionally, they would have the option to opt-out and start pursuing their own legal claims. As Sportico has pointed out, class action settlements can have momentum if they are examined more closely, such as if they place too much weight on the details or alter an industry too much.
There’s also the possibility the U. S. Court of Appeals for the Ninth Circuit or the U. S. Supreme Court will stop the settlement—Houston Christian University, which objects to the settlement, has already petitioned the Ninth Circuit. Another possibility:
In state courts, where locally elected judges might hear voices from cash-strapped colleges about having to foot the settlement’s bill, the NCAA and power conferences are sued.
Even if the settlement gains final approval, that would n’t prevent other antitrust lawsuits. The settlement terms have n’t been ( and ca n’t be ) collectively bargained with a players ‘ union, which itself ca n’t exist unless and until college athletes are recognized as employees.
However, the settlement’s attorneys are n’t yet concerned about potential problems that might arise later. Before giving preliminary approval, they must first obtain Wilken. That’s the first play in their legal playbook.