Today’s host column is by Arthur H. Bryant of the Clarkson Law Firm.
The suggested class action lawsuit in In are Collegiate Athlete NIL Litigation, formally known as House v. NCAA, cannot endure. In infraction of Title IX, it discriminates against women athletes, replaces one improper price-fixing deal with another, and establishes roster restrictions that are already privying thousands of players of the opportunity to play college athletics. Additionally, it violates the U.S. Constitution and the class action laws, which mandate that group members with opposing goals, such as the female and male athletes in this case, be represented by distinct attorneys dedicated to them.
The proposed settlement seeks to resolve three distinct antitrust class actions that accuse the NCAA and the Power Five conferences of unlawfully defrauding college athletes of receiving payments in the form of name, image, and likeness ( NIL ) income. A damages and an injunctive comfort class may be created in addition.

The proposed problems group did distribute$ 2.567 billion over 10 times to men and women who were college sports between June 15, 2016, and Sept. 15, 2024. The proposed planning is very one-sided: 90 % of the money will go to people’s football and basketball athletes, 5 % will go to women’s hockey people, and 5 % will go to men and women on different teams.
The proposed injunctive relief class will alter some NCAA regulations for all Division I athletes for ten years, allow some third-party payments, mandate the enforcement of some NIL-related regulations, permit school sharing of up to$ 21 million annually with their athletes, and replace roster restrictions with roster restrictions ( often smaller than current roster sizes ), and change some NCAA rules for all Division I athletes for ten years.
Federal law is broken by the ideas for both groups.
Title IX of the 1972 Education Amendments mandates that collegiate collegiate athletic programs provide men and women with similar opportunities to participate, financial help, and care for all. Fifty-three times before, when it was enacted, the NCAA opposed it. The NCAA and supporters of men’s sports subsequently filed a lawsuit to exempt basketball and men’s hockey from Title IX. They lost. The outcome? Title IX prohibits gender discrimination and requires justice, regardless of sports or income. If institutions are giving men and women players the same amount of money or remedy, it must be on par.
That principle is flagged out in the proposed damages school distribution. At the initial acceptance reading in September, a group of female athletes ‘ attorneys claimed that because Title IX was never involved in the case, that “if there are damage claims that are that, they should be asserted by someone in some other forum, they should be asserted by someone else.”

The arrangement should be amended for various reasons, the courtroom urged the settling parties to make it clear which statements, if any, were made public.
Therefore, a modified proposed settlement was submitted, and school lawyers informed the court that the events “have amended the Settlement Agreement to contract state that the transfer of claims by group members does not expand to… any Title IX claims.” But that wasn’t true.
All Title IX claims that are “arising out of or relating to the distribution of the Gross Settlement Fund” are defined in the amended agreement as” Unreleased Claims,” according to the women athletes ‘ claims that this was unfair. It releases those claims, moreover, not only against the NCAA and the conferences, who say Title IX does not apply to them ( it does, because the schools delegated their athletic oversight and coordination activities to them ), but against all of their member schools, to which Title IX undoubtedly applies.
Additionally, the proposed damages distribution is in violation of Title IX. On Jan. 16, 2025, the U. S. Department of Education’s Office for Civil Rights, which regulates Title IX, confirmed this fact. It stated that” a student-athlete’s compensation from a school for the use of their NIL qualifies as athletic financial assistance that, under Title IX, must be made available to male and female student-athletes in a way that is substantially proportionate to the number of students of each sex competing in interscholastic or intercollegiate athletics at that school.”
The proposed class for injunctive relief is in contravention of antitrust laws, two other federal laws. The U. S. Department of Justice made that clear on Jan. 17. The proposed settlement replaces a competition agreement to cap compensation for use of college athletes ‘ NIL at$ 0 with a competition agreement to cap compensation at 22 % of average revenue, according to the statement of interest of the United States of America filed with the court. [ That ] serves as an artificial price cap on what free market competition might otherwise result in.

The proposed roster restrictions accomplish the same thing. They would artificially stifle competition for scholarships and athletes and stifle opportunities for thousands of opportunities over the course of one day.
Sadly, many colleges are already implementing the roster caps, thinking the settlement could be approved. Current and newly hired athletes are often eliminated from their teams and left devastated. This is only a sign of what might come. In December, Sports Illustrated reported that, under the settlement, cuts at D-I schools” could be as high as 25, 000″.
These facts demonstrate the main flaw of the settlement: It was reached through a process where only women and athletes with roster caps were properly represented. If class members’ interests conflict, both Rule 23 ( a ) ( 4 ) of the Federal Rules of Civil Procedure and the Due Process Clause of the U. S. Constitution require that they be represented by separate, independent counsel.
Here, their interests do conflict. In fact, class attorneys claimed that women athletes had suffered more harm than men. Because” the NCAA promotes female sports less than it does male sports,” according to their complaint, “adversely affected female athletes more than their male counterparts.” But as far as the record reflects, they did nothing differently ( or at all ) to advance the women’s separate interests.
They opposed Title IX and pursued a theory of damages that stifled the women’s losses and recovery. They agreed to a multibillion-dollar settlement that gave women less than 10 % of the money. They claimed Title IX wasn’t in the lawsuit when that was disputed as unfair. Then, they released and immunize defendants and their affiliated schools from Title IX claims and made the settlement a suitable.
This whole process was unfair. Lawyers who did not adequately represent the women or athletes on the roster were the ones who created the proposed settlement. Any questions? The proof is in the pudding. And the proposed resolution cannot endure.

Former Chairman and Executive Director of Public Justice, a national public interest law firm dedicated to ensuring access to justice for all, Arthur H. Bryant of the Clarkson Law Firm. He has successfully represented more male and female athletes in Title IX litigation than any other attorney in the United States. On behalf of women and men who disagree with the proposed settlement, he is co-counsel with MoloLamken LLP.