The last quarter-century of college sports history has lent itself to all kinds of “what-if” games, ranging from the plausible to the wildly speculative. Here’s one worth pondering: What if U.S. District Court Judge Claudia Wilken had never been involved in shaping the NCAA’s relationship with federal antitrust laws?
While Wilken’s judicial legacy will forever be tied to the rights of college athletes, it’s worth noting how unlikely it was she would have ever heard one such case, let alone a string of them, spanning nearly three decades.
Over that time, Wilken has staked her claim as the most influential single force in dismantling the NCAA’s foundational principle of amateurism, issuing a series of rulings addressing college athletes’ rights that were cautious and methodical in their approach but, ultimately, transformative in their impact.
This has culminated in her pivotal role overseeing the proposed multibillion-dollar settlement in three pending class-action antitrust cases—House v. NCAA, Carter v. NCAA, and Hubbard v. NCAA—which will allow schools to directly compensate athletes, up to a certain limit.
On Monday, Wilken is set to preside over a fairness hearing to determine whether to grant final approval to the proposed settlement, which she gave preliminary approval to in October. Wilken’s approval came only after initially expressing reservations about aspects of the settlement, leading the parties to tweak language.
In the months since, the settlement has faced a wave of objections from athletes, schools and other stakeholders. They have urged the judge to either reject it entirely or at least delay its implementation. At the same time, the college sports industry has aggressively moved forward with the expectation the settlement will soon take effect. Numerous college athletes have already signed agreements with schools outlining their terms of payment for the 2025-26 academic year.
For Wilken, 75, her decision to give the final go-ahead could very well be her last chance to shape the future of the college sports industry, a subject she knew little about when it first landed on her docket 16 years ago.
“Her longevity on the matter is amazing,” said Jon T. King, who served as lead counsel for Ed O’Bannon, the former UCLA basketball star, in his groundbreaking NIL litigation decided by Wilken.
The judge’s foray into intercollegiate athletics began on May 5, 2009, when Sam Keller, the former quarterback at Arizona State and Nebraska, filed the first of the federal lawsuits over college athlete NIL rights against the NCAA, the Atlanta-based Collegiate Licensing Company, and Electronic Arts, the video game studio headquartered in Redwood City, Calif.
Keller’s contention, amplified and augmented two months later by O’Bannon’s complaint, was that the defendants had colluded in violating the publicity rights of college athletes, who themselves could not profit from those same rights while in college.
Though Wilken may have been new to college sports, she was no rookie in the courtroom. By the time Keller’s lawsuit landed on her docket, she had already served over 25 years on the federal bench, including a decade as a magistrate judge. In the months leading up to Keller’s lawsuit, the judge had made national news with her rulings against President George W. Bush’s environmental policies, specifically as to whether polar bears deserved to be on the endangered species list.
But this was an entirely different beast. Indeed, as Wilken freely admitted early in the proceedings, she was unfamiliar with college sports, which would become a defining characteristic of her role as its adjudicator.
“I remember thinking when she started doing these cases that it’s great she doesn’t come into it with any pre-existing leaning, for or against the NCAA,” former U.S. District Judge Jeremy Fogel told Sportico in a phone interview. “Because [she did not] come in with a lot of familiarity of the college sports culture, or the downstream consequences of some of her rulings. And I don’t mean this as a criticism, just as sort of an objective observation that she probably didn’t know what might happen with them.”
Fogel, a college sports enthusiast whose son played Division I football, acknowledged that his personal connections would have been difficult to put aside.
“I probably would have seen some of the downstream consequences just because of my own personal involvement [in college sports] and it might have affected the way I approached the cases,” said Fogel, who retired from the bench in 2014 and now serves as executive director of the Berkeley Judicial Institute at UC Berkeley’s Law School.
College sports’ governing body, headquartered in Indianapolis, pushed for the cases to be transferred to Indiana, where it likely hoped to benefit from a home-court advantage. Wilken denied the request but indicated she was open to transferring the cases to Tennessee.
“We’re comfortable litigating there,” an NCAA lawyer told the judge. “It’s close to home for us.”
Both Keller and O’Bannon sought to have their cases consolidated in the Northern District of California.
These questions of venue, coupled with the defendants’ motions to dismiss the litigation, were before the court when Wilken held her first hearing on Dec. 17, 2009.
At the hearing, Wilken set the tone for how the case would proceed. “She made it very clear, right from the get-go, that this wasn’t an industry she claimed to have any prior knowledge of—and that was a good thing,” King said. “That meant everything would be above board, with full transparency. The discussion would be based entirely on the evidence, not on some personal viewpoint the judge might have formed from watching college football for 30 years.”
A month later, Wilken denied the defendants’ motions to dismiss while agreeing to consolidate O’Bannon and Keller under In re NCAA Student-Athlete Name & Likeness Licensing Litigation. The legal battle would unfold from there.
EA decided to cut a $40 million deal with O’Bannon’s group wherein depending on how many video games players appeared in and the degree to which games tried to capture their likenesses, more than 29,000 players were paid as much as $7,200 and on average around $1,200.
After multitudes of motions, and voluminous discovery, the trial in what ultimately came to be known as O’Bannon v. NCAA took place over two weeks in June 2014, during which Wilken evinced her growing but understated skepticism about the NCAA’s rationale for preventing athletes from getting paid.
The writer Charles P. Pierce, in a dispatch for the now-defunct Grantland, referred to Wilken as a “remorselessly efficient federal jurist” who “runs her court briskly and by the book, without saying or doing anything that could remotely be called imperious.”
At its heart, the trial was about whether college athletes and former college athletes should be paid more than nothing for use of their NIL in video games and other products. The central legal issue was more nuanced: Did the NCAA and its member schools, which are competing businesses and therefore subject to antitrust law, illegally conspire to restrict athletes’ economic opportunities under the guise of amateurism? This question was for Wilken to answer since it was a bench trial, with no jury, and the judge tasked with deciding the facts and applying the law.
The trial featured testimony from some of the most powerful individuals in college sports. For example, during cross examination, then-NCAA president Mark Emmert was forced to explain why colleges used athletes to promote sponsors when the NCAA said it worried that paying college athletes would be exploitative. Indeed, Emmert was showed pictures of players wearing Nike uniforms, the placement of players’ images next to corporate sponsors and even trading cards of college football stars without those players’ consent or payment.
Two months later, in August 2014, Wilken ruled in favor of the athlete plaintiffs and against the NCAA, marking the first significant crack in the facade of amateurism. It was a historic ruling in that a federal judge had found the NCAA and members to violate antitrust law through amateurism rules. To be clear, however, O’Bannon’s lawsuit was not an attempt to end amateurism; his demand was more narrowly tailored, essentially insisting that college athletes should be able to use a right they already have, the right of publicity, through NIL and receive accompanying compensation.
Wilken’s remedy to cure the finding of illegal conduct surprised some. She ruled that colleges would hold NIL payments of $5,000 a year in a trust and the payments would be made to players after their collegiate careers ended. Wilken’s remedy reflected testimony given by an NCAA witness, former CBS president Neal Pilson, who told Wilken that while he was not comfortable with the idea of paying college basketball players $200,000 a year, $5,000 would have been compliant with amateurism.
As O’Bannon would later write: “I thought amateurism only works if there is no pay? Now we find out that amateurism works so long as the pay is $5,000.”
The NCAA appealed the decision to the U.S. Court of Appeals for the Ninth Circuit, which affirmed O’Bannon’s win and agreed with Wilken that the NCAA violated antitrust law. However, the Ninth Circuit modified the remedy. It vacated the $5,000 trust arrangement, reasoning that the Wilken “clearly erred in finding it a viable alternative to allow students to receive NIL cash payments untethered to their education expenses.”
In lieu of the trust, the Ninth Circuit held the appropriate remedy was for NCAA rules to allow colleges to offer college athletes up to the full cost of attendance, which for athletes at many colleges meant thousands of dollars more than their grant-in-aid.
The O’Bannon case also played a catalyzing role in states adopting NIL statutes in the late 2010s and early 2020s, since the case revealed fundamental unfairness in denying college athletes a right they already possessed as Americans.
“The issues with college sports often carry potential political ramifications, and I think incremental change has been the right approach,” King said. “She may have seen it this way—though I can’t speak for her—but there was a much greater risk of reversal, retrial or political intervention that could have undermined the lawsuits’ impact. The way things have moved forward, though slowly, seems to be the most sustainable path.”
Two years later, Wilken ruled in favor of the plaintiffs in Alston v. NCAA, paving the way for the Supreme Court’s unanimous verdict against the NCAA’s appeal. Although it was heard by the Supreme Court, Alston involved an arguably peripheral topic in college sports: NCAA rules restricting how colleges can compensate athletes for education-related expenses. Although the case is often mistakenly linked to NIL, it had nothing to do with NIL and wasn’t about pay-for-play, either.
But it still mattered.
Justice Neil Gorsuch clarified that the NCAA is not owed deference under antitrust law, a clarification that has made suing the NCAA on such grounds more attractive for plaintiffs’ attorneys.
And in doing so, Gorsuch ruled that Wilken got it right.
