The revisions, objections and responses have all been filed.
The House settlement, the potentially landmark decision as it relates to college athletics, revenue sharing and the future of NIL, now rests solely on the shoulders of U.S. district judge Claudia Wilken.
It is up to Wilken to approve the settlement or not. If approved, the landscape of college sports will be dramatically altered. Revenue sharing — in theory — could lead to more parity in sports like football and men’s basketball. Roster limits too could affect every sport, adding more talent to top teams or spreading the talent around, depending on the sport.
If Wilken doesn’t approve the settlement, though, the class action lawsuit filed against the NCAA, the Power conferences and the Pac-12 could go to trial and future of college athletics will be as muddied as ever.
Several states, including Utah, have laws on the books now that will enable in-state universities to revenue share with players, even if the House settlement isn’t approved. Many, though, do not. If the House settlement is rejected, the next era of college sports may well be the most uneven and unregulated in history.
What will Wilken do?
No one truly knows, but plenty of lawyers have opinions on the subject. Attorneys who have followed the House settlement through its various stages.
Many find it hard to believe that Wilken will sign off on the House settlement as it currently stands, based on what she has asked from the NCAA and the Power conferences (plus the Pac-12).
Philip Sheng, a partner at Venable LLP, wrote on X: “Approval will likely turn on Judge Wilken’s interpretation of (the Supreme Court’s Walmart v. Dukes decision) and whether under Rule 23(b)(2) an injunction must apply equally to each member of the class. I’m surprised the NCAA and Plaintiffs are still arguing that Wilken needs to view the settlement as a whole. She’s rejected that argument several times now, including during this exchange between Kilaru and Wilken at the April 7 hearing. One more general thought. I don’t think the Plaintiff or NCAA has adequately addressed how their plan undoes the harm for those athletes who were prematurely cut.”
Darren Heinter, founder of Heitner Legal, didn’t go so far as to suggest that he knows what Wilken will do, but noted that the settlement appears to fall short in many ways. Enough, perhaps that Wilken won’t sign off.
“The more I think about the House v. NCAA settlement, the more I realize that there is only (one) good component, and it’s very temporary,” Heitner wrote on X. “The positive piece of the deal is the damages to athletes going back to 2016 in the amount of roughly $2.8 billion. You could argue this is a discount on what’s owed and that it’s not being properly apportioned to athletes, but it’s a hedge on the risk of moving forward with litigation, which could also drag out for a long time.
“However, we can all safely assume that the settlement will be appealed, at which time this payout will likely be stayed. So, the one good piece of the settlement could be delayed for a while. I can’t think of any other “win” for the plaintiffs (i.e. the athlete class). Schools will be able to pay them directly, which they could do without the settlement. Payments from schools will be capped, which wouldn’t be true absent the settlement. There is no floor. Payments not made from the school but instead paid by collectives will be subject to a fair market analysis. All of this is purely intended to reduce the amount of money that athletes are currently receiving.
“Additionally, plaintiffs’ counsel gave in on roster limits and agreed to lobby Congress with the NCAA. I’m really struggling to figure out how this settlement is anything but downright ugly for athletes. Not only the athletes current(ly) competing in college athletics, but the athletes who will compete in the future and had no say in the settlement.”
Mit Winter, attorney at Kennyhertz Perry LLC was brief with his thoughts following the filings by the objectors to the settlement over the last week.
“Will Judge Wilken approve a roster limits plan that will inevitably result in some class members losing their current roster spots? There’s a definite chance she won’t,” Winter wrote.
Tom Mars, a prominent attorney in the sphere of college athletics, opined that Wilken might be inclined to deny the settlement because it seems to many to be a short term solution anyway.
“Wouldn’t it be ironic if Judge Wilken woke up this morning thinking: Why should I approve a settlement I don’t believe is fair and is, at best, a stopgap solution if the President’s commission is probably going to undo most of the settlement when it “fixes” college sports?" Mars wrote.
Sam C. Ehrlich, a former lawyer turned assistant professor at Boise State, has been active at every turn of the House settlement and in his opinion, the NCAA didn’t fully address Wilken’s concerns.
“My take from reading everything: approval of the settlement will very much depend on whether Judge Wilken was looking for huge changes addressing all of her concerns with the roster limits or just something to mitigate them,” he wrote. “There is no reasonable argument that the parties fully addressed all of the concerns that Judge Wilken expressed in her order. The question will be whether the changes made are enough to put her in a position where she has to find the settlement reasonable as a whole.”
Ryan P. Mulvaney of Stevens & Lee PC believes Wilken should seriously consider denying the settlement and sending the lawsuit to trial.
“Judge Wilken said she would grant final approval of a settlement pursuant to which NO members of the Injunctive Relief Settlement Class would lose a roster spot because of the implementation of the settlement agreement. The NCAA/Conferences argue that the modified agreement “does that, and more,” and then proceeds to tell the Court that no athlete who lost a roster spot would not count toward any school’s roster. But the athletes have ALREADY been harmed by ALREADY having lost their roster spots. There is nothing in the modified agreement that provides that those athletes will be assured the roster spot that they previously had or assured a roster spot at another school. Correspondingly, granting schools the sole and absolute discretion to unwind the harm they ALREADY caused is trying to jam the toothpaste back in the tube. That modification does nothing because NO school is REQUIRED to do anything. In addition, for an athlete to not count against another school’s roster, there needs to be … another school.
“Nothing assures any athlete who lost a roster spot that another school will “sign” and roster them.Harm is harm. And harm has already been visited upon athletes. Nothing in the modified settlement agreement reverses that harm. Frankly, if I’m Judge Wilken, I’m seriously considering denying final approval and sending the case to trial. (And what’s that mean? Athletes: if your revenue sharing agreement is expressly contingent on House obtaining final approval and the state in which your school is located does not have legislation allowing the schools in that state to directly pay athletes, your revenue sharing agreement goes up in smoke … but, your members of a class in a case proceeding to trial where damages are in the billions … you may do better)."
There are some who think — hope may be the better descriptor — that Wilken will approve the settlement. Those involved on the behalf of the defendants (the NCAA, the Power conferences and the Pac-12) and the plaintiffs (the select student-athletes who sued the NCAA) first and foremost.
Plaintiff attorney Jeffrey Kessler told CBS Sports that he is confident that Wilken’s concerns have been addressed.
“We believe that all of the concerns of the Court have been addressed and are hopeful for a quick final approval so that the athletes can start realizing the phenomenal benefits of the settlement,” Kessler said.
Steve Berman, co-lead counsel for the defendants, has expressed confidence in the settlement satisfying Wilken since it was revised.
“The agreement we will reach with the NCAA will solve the judge’s concerns,” he told The Associated Press.
Mostly, though, legal experts largely agree that the House settlement is flawed and the changes made by the NCAA may not be enough to get Wilken to approve it.
What would happen in that case, is anyone’s best guess.
“We now wait to see how Wilken reacts,” Winter wrote on X. “Does she: Approve? Approve but stay injunctive relief pending appeals? Deny & say try again? Just deny?”
Time will tell.