The proposed settlement in House v. NCAA, as previously covered, was an attempt by the NCAA to resolve pending litigation regarding compensation for athletes who played college sports from 2016 to 2024.[1]
The proposed settlement allocated $1.976 billion for the claims of NIL damages, which would be allocated among the schools and then distributed to the players. The settlement would allocate $1.815 million for BNIL (Broadcast Name, Image, and Likeness), $71.5 million for the Videogame Settlement Fund, and $89.5 million for Lost NIL Opportunities.[2]
Comparing the settlement for men’s and women’s sports shows a great disparity. Exhibit A of the proposed settlement agreement contains a breakdown of Football and Men’s Basketball compared to Women’s Basketball. The average expected BNIL claim is $91,000 for Men’s, but only $23,000 for Women’s. Similarly, the average expected Lost Opportunities claim for Women’s at $8,500 is half that of the Men’s at $17,000. Based on this disparity between Men’s and Women’s compensation, and the disparity between Power 5 schools and other Division I schools, the South Dakota attorney general filed an objection against the proposed settlement.[3]
The proposed settlement also allows schools to pay additional compensation to student athletes for the next ten years.[4] The U.S. Department of Education has also stated that Title IX rules will apply to future revenue shared with athletes,[5] but it is currently unclear what equitable distribution under Title IX means with respect to the settlement. Like financial aid that must align with the gender breakdown of student enrollment, is it equitable to distribute this money along the same lines? Or is it more equitable to distribute this based on each athlete’s NIL value in the open market?
The settlement also has hit another major roadblock from the judge overseeing the case. One term included in the settlement is that any money paid to athletes from boosters has to be for a valid business purpose. This would grant the NCAA further control over the types of NIL deals that athletes could receive. Judge Wilken did not give preliminary approval for the settlement and recommended that this term be removed.[6]
If the settlement in House v. NCAA is approved, athletes will have an opportunity to file a claim or opt-out in a timely manner because it is a class action. Former athletes who feel the settlement does not offer them appropriate compensation can opt out of the settlement and bring their own lawsuit in hopes that they can win a larger amount on their own.
On September 10, four former Michigan players launched a separate lawsuit seeking $50 million in damages.[7] All four played college football for the Wolverines prior to 2016. The statute of limitations is four years for federal antitrust claims, which is why the House v. NCAA settlement only provides compensation back to 2016, based on the case being filed in 2020. However, the Michigan players in Robinson v. NCAA are claiming they are entitled to an equitable tolling based on the NCAA forcing them to sign away their rights when they were barely past the age of maturity, and that continued use of their NIL in TV broadcasts without compensation repeatedly restarts the statute of limitations.[8] The NCAA’s likely response will be to file a motion to dismiss based on the statute of limitations having passed. If Robinson and his fellow players can survive based on their arguments that the statute of limitations has not already expired, this may be the start of a new avalanche of lawsuits from former players who were prohibited from accepting NIL deals for many decades prior.
The NCAA may have thought reaching a settlement agreement would effectively cap its exposure to past claims. It does not bode well that the judge has sent the parties back to continue negotiations, and the NCAA faces a continued lawsuit if a new settlement cannot be reached. As new cases continue to be filed, the legal quagmire continues for the NCAA arising from the decades that student athletes were prohibited from accepting NIL deals.
[1] https://ublawsportsforum.com/2024/08/31/union-or-bust-athletes-continued-fight-to-unionize-post-ncaa-settlement/
[2] https://ncaaorg.s3.amazonaws.com/ncaa/legal/NCAALEG_Settlement-July2024.pdf
[3] https://frontofficesports.com/south-dakota-ag-challenges-house-v-ncaa-settlement-proposal/
[4] https://ncaaorg.s3.amazonaws.com/ncaa/legal/NCAALEG_Settlement-July2024.pdf
[5] https://www.espn.com/college-sports/story/_/id/40567726/title-ix-college-athlete-revenue-share-nil
[6] https://www.espn.com/college-sports/story/_/id/41141275/house-v-ncaa-settlement-hold-judge-urges-revisions
[7] Complaint, Robinson v. NCAA, No. 2:24-cv-12355-TGB-DRG (E.D. Mich. Sept. 10, 2024), ECF No. 1.
[8] Complaint at 42-43, Robinson v. NCAA, No. 2:24-cv-12355-TGB-DRG (E.D. Mich. Sept. 10, 2024), ECF No. 1.
Christopher Atwood (Class of 2025) is pursuing his J.D. at the University at Buffalo School of Law, with a concentration in Intellectual Property.
My thoughts are that the schools should apply Title IX to all payouts. If the overall money is not distributed in accordance with Title IX requirements, thw schools are sure to be sued again under Title IX.
I doubt there is a university in the country that wants to risk the federaloney they receive for research because of how they paid out the money from the House settlement/resolution.