Consider two.
When attorneys for the NCAA, power conferences and athletes in the House, Carter and Hubbard antitrust litigations met with U. S. District Judge Claudia Wilken on Sept. 5, the meeting did n’t go as planned.
Those counsel probably assumed the moving would be a touchdown going in. Class activities, especially those that are competitive, are frequently given preliminary approval by judges. Below, the multibillion-dollar package was pitched as providing much-needed purchase to the chaos of modern university sports. Judge Wilken had also frankly rejected an effort by an NCAA associate college, Houston Christian University, to prevent the arrangement. It suggested Wilken, who has been a part of school sports dispute since she was given the lead role in Ed O’Bannon’s case in 2009, wanted resolution.

However, as the hearing progressed, Wilken made it clear that she would n’t grant preliminary approval until the parties substantive changes to their agreement, particularly in terms of their names, likenesses, and image.
Wilken objected to the town’s procedures to identify NIL deals that draw from an adult’s right of promotion versus those that are pay-for-play, and thus in contravention of NCAA rules. She feared that those changes would stifle the current NIL platform for college players. Along those lines, Wilken questioned why a lawsuit that directly greenlights a variant of pay-for-play—allowing universities to give athletes, subject to an annual salary-cap-style control, for media rights, ticket sales sponsorships and NIL—would try to police NIL with such restraints as fair market value research and reporting obligations. Additionally, these methods appear to conflict with the laws of various states ‘ NIL protections.
On Thursday, the lawyers reported back to Wilken by proposing modifications to their original contract. They hope to inspire Wilken that the arrangement will not expand the NCAA’s authority to enforce pay-for-play rules in any way and that it will not restrict any deals that are currently permitted. In other words, the events want Wilken to persuade him that the sport’s future is not in jeopardized.
In order to achieve this, changes include the removal of the phrase “booster” from the arrangement and clarification that NCAA police of pay-for-play regulations regarding NIL will only be reviewed of agreements with individuals and organizations that are closely connected to schools, and not with well-known brands like Nike or New Balance. NIL deals with people who’s people give to a school for less than$ 50, 000 are also exempt from the adjustments. After, in a case brought by Tennessee and Virginia, U. S. District Judge Clifton Corker blocked the undergraduate regulating system from enforcing those laws on antitrust grounds, the NCAA temporarily suspended enforcement of pay-for-play laws regarding communes in March. The NCAA would only enforce rules if the settlement is approved if doing so would not conflict with Corker’s order and other changes made in the case.

The arbitration role clarifies that it is possible to hear disputes involving NIL and NCAA eligibility. The revised agreement makes it clear that the arbitrators are impartial and will be chosen by the NCAA and the players ‘ attorneys.
The changes are intended to muddle Wilken, who also raised concerns that the proposed notifications to athletes about class eligibility and payouts are inconveniently written. The attorneys “need to make it clear that not everyone is going to be paid$ 1 million,” the judge eloquently said.
Given the NCAA’s prohibition on pay-for-play, she found some of the proposed language to be obtuse, such as the use of the phrase “lost opportunities,” when college athletes would have never requested compensation from athletic directors. Additionally, Wilken pressed for clarification on the rights of future college players, including those who are currently children, and how the settlement would impact them.
The ball is now in Wilken’s court. She could hold a second hearing or make a final decision regarding the motion. Wilson might also allow other interested parties to hold hearings to evaluate their arguments and file objections ( there are already objections from attorneys representing crew athletes and Division I athletes bringing antitrust litigation in Colorado ).
According to Rule 23 of the Federal Rules of Civil Procedure, Wilken is required to assess the settlement’s “fair, reasonable, and adequate” status. The judge is aware that the NCAA, conferences, and colleges have been accused of price fixing, colluding, and other antitrust law violations. She’s unlikely to consent to a settlement that does n’t address the root causes of the negative economic effects on athletes.
Even if Wilken grants preliminary approval, that does n’t mean she’ll grant final approval. She’ll then examine the number of athletes who choose not to participate and consider issues that have been raised at a fairness hearing. Additionally, there is a chance that the agreement will be challenged before the U.S. Court of Appeals for the Ninth Circuit and then the U.S. Supreme Court. Before the settlement actually enters into force, it might take years. Along the way, the settlement might collapse, and the three lawsuits would then be returned to the court. Given applicable precedent, the NCAA could reason to believe that the three lawsuits would likely result in a victory.
The settlement’s structural flaws include having a voice in addition to a labor agreement. So long as college athletes are n’t recognized as employees, they wo n’t be able to unionize. Because the non-statutory labor exemption only shields collectively bargained terms from antitrust exposure, any restrictions on their economic opportunities will be fair game for antitrust litigation. And no matter what happens with the settlement, it ca n’t stop labor and employment lawsuits, including those brought by Dartmouth and USC athletes, and NLRB allegations, especially given that male athletes will receive more money than female athletes under the settlement, and claims brought under Title IX.
Wilken has also indicated she’s keeping tabs on college sports developments. She surely noticed Wednesday’s controversy involving UNLV and quarterback Matthew Sluka, who claims the school promised him$ 100, 000 to transfer from Holy Cross ( UNLV denies the allegation ). Wilken might speculate that the situation exemplifies how NIL has evolved into a marketplace. She might think that attempts to restrain or guardrail that market should be made through an arbitration agreement rather than through athletes having a voice over the issue.
But the NCAA does n’t seem deterred. In a statement, the association said the amended settlement proposal “addresses questions” that were “raised by the judge during the preliminary hearing”. The association also claims that the revisions will “limit future enforcement authority over third-party NIL deals” and “enlarge opportunities for student-athletes to profit from their NIL and provide both clarity and transparency to those seeking to offer or accept NIL deals.”