Friday’s deadline for filing objections to the nearly $2.8 billion NCAA antitrust settlement yielded more than a dozen legal challenges attacking the landmark deal. Four antitrust experts told ESPN the deal is still likely to be approved, but some objections have the potential to delay, reshape or derail it.
Any significant delay in the settlement could create a new wave of chaos for college athletic departments that have made plans to begin paying their athletes this summer. Many of the contracts athletes have already signed would allow the schools to back out of paying players if the settlement is not approved. Some states have passed laws that would clear the way for their schools to start paying players even if the settlement fails, which could give them an advantage in recruiting or retaining athletes.
The settlement would allow schools to directly pay their athletes moving forward and force the NCAA to pay prior damages to a group of more than 100,000 former and current athletes who claimed to be victims of antitrust violations. The large majority of those damages would be paid to football and men’s basketball players.
The athletes and lawyers who filed objections in the last week raised concerns with several parts of the pending settlement, including:
• claims that future limits on how much schools can give to their athletes create a new illegal cap, violating the same laws that prompted these cases to be filed;
• claims that the $2.8 billion damages payout is too low and the formula used to distribute that money is unfair to women athletes, walk-on athletes and others;
• a clause that places a limit on team rosters could eliminate thousands of opportunities for athletes to play Division I sports in the future;
• alleged conflicts of interest for the plaintiffs’ attorneys, including a clause that obligates them to “use reasonable efforts to support” NCAA lobbying in Congress for a new law limiting future antitrust challenges on the spending limits established through the settlement.
Judge Claudia Wilken, who has presided over multiple NCAA-related lawsuits in the past decade, has scheduled a hearing on the settlement for April 7. Her mandate is to determine whether the deal is “fair, reasonable and adequate” for all Division I athletes and their schools. Wilken can approve the deal in its current form, ask for revision based on the objections or reject the deal and push the cases toward trial.
“These objections are not made by folks who just want to get on the record. There is a real possibility these impact the settlement,” said Jeremi Duru, a sports law professor at American University. “Some of them are quite valid, and I do think Judge Wilken will view them that way.”
Duru and three other specialists in antitrust and sports law told ESPN that the objections raise legitimate problems that could reshape or potentially even derail the deal, but they all said it is more likely than not that Wilken will approve the settlement.
“This is so far down the tracks it’s going to be hard to stop,” University of Illinois sports law professor Michael LeRoy said. “A judge at this point is loath to create uncertainty for the parties. My heart is saying don’t accept the settlement, but the rational part of me says: How doesn’t this get done?”
Steve Berman and Jeffrey Kessler, co-lead attorneys for the plaintiffs, did not respond to phone calls seeking comment about the objections.
The lead plaintiff who initially filed the first of these three antitrust claims, former Arizona State swimmer Grant House, told ESPN last month the deal was not perfect but that he believes it is a “huge step forward” for athletes. “I think that the best that could be done was done, at least as perceived through the lawyers’ and experts’ eyes,” House said.
House said he often didn’t find out about developments in the negotiations until they were reported in the news during the past few years, which left him frustrated and feeling detached from the process. He said he’s hopeful that the settlement is a step toward giving athletes a more permanent, impactful voice in the future.
At the same time, college sports leaders view the settlement as their own stepping stone toward regaining control over a system and marketplace that has swung in favor of athletes during the past several years. Their plan is to use the new benefits athletes will receive to convince Congress to provide them with an antitrust exemption.
Some player advocates worry that the settlement, instead of being a launching pad for increased benefits for athletes, could wind up shackling the athletes-rights movement that has gained significant momentum in the past decade.
If the NCAA does get antitrust help from Congress — the odds of which are still uncertain but have at least improved since November’s election — it would be difficult for athletes to negotiate a higher cap.
“No one gets everything they want in a settlement,” said Rutgers professor Michael Carrier, an antitrust specialist. “Student-athletes are [going to be] doing better through the settlement than they have done before. There is reason to applaud that, but if it makes it harder for future student-athletes to challenge restraints then that’s not ideal.”
Duru said the settlement doesn’t have to fairly “order the future of college athletics with all other considerations playing into the decision” for Wilken to approve it, but “courts often do consider factors outside the particular dispute before them.”
Wilken received several letters urging her to consider the “broader implications” of the deal. Former National Basketball Players Association executive director Michele Roberts filed a 35-page brief with the court this week warning the settlement could pose long-term harms to athletes by stripping them of negotiating power. The Biden administration’s outgoing Department of Justice also submitted a “statement of interest” earlier this month raising similar concerns.
“We believe the settlement produces a newer version of an old status quo where athletes may have more money but no more power,” states the letter that Roberts co-wrote. Roberts has urged leaders of professional sports’ unions to speak out against the settlement, something they haven’t done yet. But only groups that have filed an official objection as of Friday will be able to speak at the April hearing or appeal whatever ruling emerges.
