What are next steps in NCAA's $2.8 billion settlement becoming reality?

By Ralph Russo, Lindsay Schnell and Justin Williams The deadline to formally object to a landmark settlement of antitrust cases facing the NCAA passed late last week with more than 35 filings to the court.

Numerous challenges have been made to how $2.8 billion in damages is expected to be divvied up among claimants, proposed roster restrictions some say unfairly limits opportunities for college athletes and whether the deal violates Title IX.

Advertisement A hearing is scheduled for April 7 in Northern California, the day of the NCAA mens basketball championship game, and federal Judge Claudia Wilken is expected to issue a ruling this spring.

The settlement also includes a revenue-sharing plan that will allow schools to start directly paying players next school year, with each school distributing as much as $20.5 million to its athletes.

The NCAA and college conferences named in the lawsuits believe Wilken has already addressed most of the issues raised in objections, and are confident she will approve the settlement.

We dont think theres anything in the objections that hasnt been known about the settlement, Rakesh Kilaru, the NCAAs lead counsel who negotiated the settlement, said recently.

We dont think theres going to be anything that should give the judge reason to change her mind.

The preliminary approval order, while preliminary, says shes likely to finally approve the settlement.

That was after folks came in and raised concerns about Title IX, roster limits, general antitrust concerns.

Schools and conferences are moving on plans to implement revenue sharing, with some starting to sign athletes to revenue-sharing agreements.

They are also deep into preparation and budgeting for life post-settlement.

Some athletic departments have been frank in their financial assessment: Indiana University, for example, is planning to cut 25 athletic department positions and funnel that money to athletes.

There are potential roadblocks though.

In addition to the objections and comment letters filed by last Friday, recent Department of Education guidance stated name, image and likeness (NIL) payments made by schools could violate Title IX gender equity laws if the vast majority of the money goes to football and mens basketball players, as some have planned.

The DOEs Office for Civil Rights handed down a memo last month while still under the Biden administration.

Advertisement The Department of Justice also weighed in under the previous administration, questioning whether the proposed cap on revenue-sharing payments to athletes violates antitrust law and encouraging Wilken to reject the settlement or remove the caps.

Since then, a new lawsuit against the NCAA and power conferences has been filed by more than 70 athletes who have opted out of the House settlement.

Meanwhile, plaintiffs attorneys say they have about 40,000 eligible claims to collect damages from former athletes who have already opted in.

Kilaru acknowledged the settlement isnt expected to be a cure-all for college sports.

Its going to involve sharing at or close to 50 percent of (athletic department) revenues with student-athletes, and its going to bring a lot more stability to college sports, he said.

Steve Berman, one of the lead plaintiffs attorneys who negotiated the settlement, said that based on the number of formal opt-outs, more than 99 percent of the class represented by the settlement supports the deal.

This settlement is going to lead to an increase in spending on college athletes and should increase overall participation in college sports, Berman said.

Although we appreciate all of the views expressed by the objectors, and have considered them, we believe the settlement is more than fair.

Others arent so sure.

Arthur Bryant, a prominent Title IX attorney from the Bay Area who filed his own objections, is adamant that the settlement be reworked and skeptical Wilken will approve it.

Bryant said in an interview with The Athleti c that the recent DOE guidance makes it clear schools have a responsibility to ensure all payments either from third parties or the schools themselves are proportional to male and female athlete participation rate.

The basic principle is that schools cant discriminate against women to make money, Bryant said, and this settlement proves theyre trying to do that again.

Advertisement Various third parties believe Wilken is likely to rubber stamp the settlement this spring, though the terms are ripe for subsequent litigation even after approval.

My strong sense is that when it gets to this level, way more matters are closed, in the sense of they go forward as opposed to they blow up, said Irwin Kishner, co-chair of the Sports Law Group with the Herrick Feinstein law firm.

Its not unheard of, but I think if youre looking at the percentages, it seems to me theres a real desire in the political situation to sort of make this happen.

Cal Stein, a litigation partner at Troutman Pepper Locke who has advised a number of colleges and collectives on NIL issues, believes its more likely than not the settlement gets approved, but acknowledged hes less confident in that outcome than he was in October when Wilken granted preliminary approval .

He also agreed more lawsuits are on the way.

The House settlement started with the goal of the NCAA putting an end to the losses it has taken in these litigations all over the country, said Stein, but the great irony is that its really just going to lead to more lawsuits.

The solution, according to nearly everyone involved, is clear: Congress must intervene with a federal law and antitrust exemption.

But that route presents its own hurdles.

Im a little bit skeptical, or maybe a lot skeptical, that were anywhere near that happening, said Stein.

I dont know that its a priority for Congress.

The final approval hearing on April 7 looms large.

Wilken will weigh the objections before approving the settlement as-is or sending it back to address her concerns.

Either way, it wont be the end, with legal battle(s) expected to roll on for months and even years.

But it is the next significant step in this ongoing effort to reshape college sports.

The Athletic s Scott Dochterman contributed reporting (Photo: Kirby Lee / USA Today).

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