The NCAA’s contentious, and yet-to-be approved, multibillion-dollar settlement deal with prosecutors for former and current Division I athletes to overcome the House, Carter and Hubbard competitive litigations faces a fresh obstacle. And it’s one that could sever the great compromise between the NCAA and the plaintiffs ‘ professionals.
On Wednesday, attorneys from Hausfeld LLP, the law firm that represented Ed O’Bannon in his successful antitrust and intellectual property litigation against the NCAA and EA over the use of players ‘ likenesses in video games, filed an opposition to the plaintiffs ‘ amended motion for preliminary approval of the settlement in federal court in California. The issue is intended to persuade U. S. District Judge Claudia Wilken, who presided in O’Bannon v. NCAA and EA, to refuse initial acceptance of the negotiation. Less obvious is that the objection makes legal arguments that could be used to persuade the U.S. Court of Appeals for the Ninth Circuit, and possibly the U.S. Supreme Court, to reject the arrangement and deliver the three cases up to the trial docket.

Seven objectors are represented by Hausfeld LLP’s Michael Hausfeld, Michael Lehmann, Nicholas Murphy, and Rodney Sermons ( the father of highly recruited high school football player RJ Sermons ), Liam Anderson ( cross-country athlete who played at Stanford ), Jordan Bohannon ( former track athlete at Vanderbilt and Georgetown ), Talanoa Ili ( current high school outside linebacker in California who is highly ranked by ESPN and has not yet signed a letter of intent ), Eze
The opponents have reason to believe Wilken may give her scathing endorsement of their arguments and possibly persuade her to reject tentative approval.
In a Sept. 5 reading, Wilken expressed animosity toward the lawsuit on various grounds. Of major concern: the town’s plan to identify, and disparately control, NIL deals on the schedule that some utilize a player’s right of publicity in the spirit of an endorsement or sponsorship deal, whereas others are more akin to pay-for-play arrangements or signing and retention bonuses.
Wilken expressed concern that regulating these deals may stifle the NIL market and cause economic harm to athletes. She also questioned why NIL deals may be regulated in light of the settlement’s proposal for a pay-for-play design wherein colleges could pay athletes for media rights, sponsorships, and NIL, issue to an annual salary cap. In an effort to assuage Wilken, who has n’t yet indicated the next steps in her review process, the plaintiffs filed a revised settlement last week that includes softened and clarified language.
The opponents raise eight simple arguments.
They insist the town’s injuries number is too small by$ 3.8 billion. According to the lawsuit, college sports lost about$ 2.7 billion in opportunities to work for compensation from June 15 to September 15th, 2024, according to the lawsuit. This number, the opponents insist, is” significantly understated”, and they use Opendorse data to argue college sports “would have earned at least$ 6.4 billion from NIL cooperatives from 2016-24” when adjusting for inflation. A possible rebuttal is that in any negotiation, there’s a give-and-take in order for both edges to choose a colony is preferable to further prosecution. From that lens, the players arguably should n’t expect to receive full value.
The agreement would lead to regulations that appear to be in violation of state regulations, including those in Virginia and Georgia that forbid the NCAA and events from punishing colleges for paying players for their NIL. In addition, Texas, Oklahoma, and a number of other states have laws that restrict the NCAA’s authority to regulate boost and group activity in the context of NIL. The NCAA has not tried, despite the fact that it has the right to contest those laws on legal grounds. The objectors refute Ninth Circuit case law, which states that” contradictory state laws cannot be overturned by a federal negotiation.”
The objectors claim that there is no “reasonable basis” for the 22 % cap on the amount of revenue athletes can share, which is significantly lower than the share ( about 50 % ) of the collective bargaining agreement between major pro league athletes. Additionally, the objectors point out that the 22 % is not borne through negotiation and is thus protected from antitrust investigation by the non-statutory work exemption. The opponents point to U.S. District Judge Clifton Corker, who earlier this year granted a preliminary injunction to Tennessee and Virginia in the NIL cooperatives case, arguing that” real NIL price” can only be determined by the “give and take of a complimentary business.” The NCAA would likely respond to these questions and say that the 22 % figure was a result of the settlement negotiations and as a significant cost control for member institutions.
The settlement, say the objectors, would harm college athletes by eliminating “billions of dollars of guaranteed money” obtained through NIL collectives and replace those payments with “non-guaranteed” arrangements overseen by the NCAA, conferences and schools. Further, the objectors assert that the settlement allows” collusion among the NCAA, conferences, and member institutions to reduce or prohibit compensation from the pool if circumstances or laws permit college athletes to collectively bargain.” Plus, they say the settlement’s proposed 10-year fixed revenue-sharing plan would be foolhardy, since the trends forecast increased athlete compensation. The NCAA contends that member schools and their academic and athletic leaders must have reliable rules in place over the course of a 10-year period.
Houston Christian University and South Dakota Attorney General Marty Jackley’s counterarguments support the objectors ‘ claim that the settlement is unfair to smaller D-I programs. Power conference schools account for over 80 % of athletic revenues but are only paying ( through reduced NCAA income contributions over the next 10 years ) 40 % of the settlement’s$ 1.67 billion tab for college. A higher portion of the bill will be paid for schools with smaller athletic profiles and revenues as a whole. Wilken, however, has not been persuaded by that argument since schools, as NCAA members, generally accept NCAA actions by virtue of their membership.
The settlement is blasted as unfairly restricting NIL collectives, which operate in a market that the NCAA—the objectors insist — “has no legal right to control”. The settlement, allegedly allowing the NCAA to “end the opportunities created by NIL Collectives” under the guise of “amateurism,” by mandating that “money from so-called “boosters” goes directly to colleges and universities, is of particular concern to the objectors.
The NCAA is accused of using the settlement as a” shouting horse” in order to pass federal legislation that would grant the NCAA antitrust immunity and preemption from conflicting state laws. The opponents accuse the plaintiffs ‘ attorneys of “uniting” with the NCAA “in a quest” to facilitate a sort of transaction and take note of the recently introduced NCAA-friendly bills. If the settlement, which will pay the attorneys their share of fees, gets approved, the attorneys will ( to some degree ) urge Congress to go along with the NCAA’s wishes. The objectors warn the settlement would “bind future college athletes” who have had no role in any negotiations.
Finally, the objectors point out that the plaintiffs ‘ attorneys are in agreement that they will be impartial about whether college athletes are employees or if they can form unions. The objectors go into great detail about the progress of Johnson v. NCAA, which claims players are employees and owed minimum wages, as well as Dartmouth athletes ‘ efforts to unionize, and use the settlement as a ruse to stop these labor and employment law efforts. The settlement does not preclude other legal disputes, including those brought under Title IX, employment law, and labor law, according to the NCAA and the plaintiffs ‘ attorneys.
The objectors have raised a number of issues for Wilken, who is also considering objections from Colorado’s antitrust attorneys who represent crew athletes and Division I athletes. She might schedule a hearing where the objectors will have a chance to present their case in court. One thing is for sure: They have complicated the settlement’s path and likely delayed the timeline in which it could be approved.