Attorneys for the athletes in the pending settlement of the House, Carter and Hubbard antitrust litigations argue in a new brief that objections over roster limits, Title IX and other topics “suffer fatal defects” and ought not to dissuade U.S. District Judge Claudia Wilken from granting final approval.
The objections, submitted by athletes and attorneys following the March 3 motion for final approval, “are mostly a rehash” of earlier ones, attorneys Jeffrey Kessler and Steve Berman contend in a document filed on Monday.
Since last year, the settlement has attracted a wide range of objections and other adverse court filings, including one by the U.S. Department of Justice at the end of President Joe Biden’s term. Wilken will review the Kessler and Berman brief before holding a fairness hearing on April 7. Her decision on whether to grant or deny final approval is expected within weeks of the hearing.
One line of objections concerns roster limits, with the settlement eliminating scholarship limits and capping rosters. Schools will decide whether to offer partial or full scholarships so long as roster limits are followed. The expected net effect of this change is more total scholarship money for athletes. But objectors highlight that roster limits will lead to some athletes, especially walk-ons, losing D-I opportunities. FBS rosters for football, for example, will be capped at 105 players, whereas many schools have used rosters of about 120 players including walk-ons.
Kessler and Berman assert that roster limits have led to “vastly overstated” fears.
“For many sports,” the attorneys write, roster limits will allow for larger rosters than average squad sizes.” The brief also points out that, outside of the Power Four conferences, roster limits “will only apply to member institutions that opt in to the revenue-sharing model.”
Schools will be able to share up to 22% of the average power conference athletic media, ticket and sponsorship revenue with their athletes, with about $21 million expected to be the initial annual cap. Revenue-sharing will be in addition to (and not in place of) athletic scholarships, which cover tuition, housing, meal plans, health resources and other student benefits and does not count NIL deals with third-parties, either. When revenue-sharing is coupled with full scholarships and other benefits provided by schools, the share to some D-I athletes—the plaintiffs argue—will be “comparable to the 50% revenue-sharing in professional sports.”
Kessler and Berman also stress that approval of the settlement hinges on whether it is fair, reasonable and adequate. Stated differently, the settlement does not have to be ideal or great for all class members; the bar for approval is much lower. Wilken will consider whether the settlement shows overall fairness in the context of the antitrust claims the players raised in the lawsuits.
To that point, Kessler and Berman maintain that a “holistic assessment” shows the settlement represents “an extraordinary transformation of college sports and opens the markets for athletic services to substantially more competition.” The brief maintains that even if the settlement leads to adverse effects on some class members, those effects are “far outweighed by the many other benefits.” Kessler and Berman also warn that the “efficacy of class-wide antitrust lawsuits” would be imperiled if “different market effects on class members” was treated as an “irreconcilable class conflict.” They also note that the settlement contains mitigation features, including that if an athlete loses a roster spot, their scholarship is protected.
In addition, Kessler and Berman reject suggestions by objectors that Wilken should amend the settlement, such as by striking roster limits. The attorneys emphasize that Wilken “simply does not have the power to remove one portion of a class action settlement and approve the rest.” To that point, a settlement is a compromise and a give-and-take; if it didn’t include roster limits, the NCAA would presumably not have agreed to the settlement and the cases would remain on the docket.
The brief also describes as “absurd” arguments that restrictions on paying athletes (such as the $21 million cap and independent review of NIL deals in excess of $600 to ensure they’re not cloaking pay-for-play arrangements) warrant rejection of the settlement. The settlement, Kessler and Berman insist, will provide athletes “billions per year in direct payments and other new benefits.” In contrast, without the settlement, competition by colleges and conferences for athletes “in the form of direct payments untethered to education would be non-existent, i.e., zero.”
The brief also challenges objections that are based on Title IX. Objectors argue the distribution of damages—anticipated to be about $2.8 billion paid over a 10-year-period to D-I athletes dating back about eight years and in reflection of lost NIL, video game and broadcasting opportunities because of eligibility rules—unfairly benefits male athletes in violation of Title IX. It’s expected that about 75% of the money will go to football players, with the remainder going to men’s and women’s basketball players and other athletes.
The problem with that argument, Kessler and Berman note, is that there is no precedent for a court holding that Title IX applies to the allocation of damages in an antitrust case.
“This is with good reason,” the brief asserts, noting that antitrust law is about economic competition in markets—a different purpose than Title IX, which prohibits sex discrimination. “The damages in an antitrust case must be allocated and awarded in a manner that would have occurred through market forces in a but-for world where the antitrust violation did not take place.”
Similarly, Kessler and Berman reject the contention that Wilken can’t approve the settlement without first determining if Title IX applies to revenue-sharing. Shortly before the end of Biden’s term in January, the Department of Education issued a fact sheet contending that Title IX applies to colleges’ direct payments to athletes reflecting revenue share/NIL. A month later, the agency, now under the control of President Donald Trump, rescinded the fact sheet.
The brief argues “there are no Title IX issues” for Wilken to decide since the settlement “does not dictate in what proportion the funds must be provided to male and female athletes.” Instead, “it will be up to the schools to determine whether Title IX,” along with other laws, “impact how they will distribute funds.”
Athletes could sue schools under Title IX if they believe the distributions run afoul of the law. But as Kessler and Berman note, that’s not the case before Wilken. Her duty is to determine if the settlement adequately resolves the specific antitrust issues in the House, Carter and Hubbard litigations, not whether the settlement might spawn future lawsuits that bring claims relying on Title IX, labor and employment, intellectual property or other areas of law.
In a statement shared with Sportico on Wednesday, the NCAA said the settlement “will expand transformational change now underway in college sports by bringing the permissible benefits for student-athletes to nearly 50% of athletics revenues and eliminating scholarship limits.” The association also notes that “the objections represent less than 0.1% of the almost 400,000 class members who will benefit from these changes and raise issues that were previously considered when the court granted preliminary approval” last October. The NCAA says it “understands change of this scale is never easy” but “coupled with the NCAA’s core guarantees that protect scholarships and mandate health and wellbeing services, today’s student-athletes are receiving unprecedented benefits as the NCAA modernizes college athletics.”
