Implications of the Proposed Settlement on the Future of College Sports
By Erica Hamilton
Executive Summary
This paper serves as a comprehensive guide to understanding the landmark House v. NCAA settlement announced on May 23, 2024, which includes the consolidation of House v. NCAA, Hubbard v. NCAA, and Carter v. NCAA. The proposed settlement requires the NCAA and Division I schools to pay approximately $2.6 billion in backpay damages to over 25,000 student-athletes and introduces a new revenue-sharing model that will enable schools to initially provide around $20 million annually to student-athletes. If approved, this settlement will bring monumental change across the industry, which will be highlighted in this paper.
First, the paper will provide an overview of the NCAA and its historical antitrust challenges, which have shaped the current name, image, and likeness (NIL) policies governing student-athletes.
Next, the paper will summarize and provide background on the House, Hubbard, and Carter cases, which are consolidated under the proposed settlement terms. It will also highlight the key provisions of the settlement and discuss the current challenges that may hinder its approval, including the need for approval from Judge Wilken, who is presiding over the case.
The paper will then explore the broader implications of the proposed settlement, such as the potential impact of Title IX, the attraction and involvement of institutional investors, the evolving role of collectives, the possibility of student-athletes being recognized as employees, the prospects of unionization, and how these changes may affect the competitive landscape of college athletics.
Finally, the paper will address other ongoing antitrust concerns that are likely to continue challenging the NCAA, even if the House settlement is approved.
Introduction
The National Collegiate Athletic Association (NCAA) is an organization comprising of over 1,200 member institutions that oversee and regulate college athletics across the United States. Established in 1906, the NCAA was initially formed to allow university presidents to implement safety measures for intercollegiate football.[1] One of the organization’s earliest and most significant actions was to establish the principles of amateurism, which have served as the foundation for the NCAA’s rules and policies for over a century. The NCAA Constitution first articulated the organization’s purpose as follows: “A basic purpose of this association is to maintain intercollegiate athletics as an integral part of the education program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate and professional sports.”[2] Additionally, the NCAA’s Manual specifies in Section 12.01 that only amateur student-athletes are eligible for intercollegiate athletic participation.[3] The NCAA further restricts the benefits student-athletes may receive, the promotional activities they may engage in, and their employment status during their period of eligibility.[4]
In recent decades, the NCAA has faced mounting scrutiny and numerous legal challenges regarding its business practices, particularly its regulation of amateurism in college sports. Central to these challenges are antitrust lawsuits, which argue that the NCAA’s rules and policies violate the Sherman Act, a law that prohibits unreasonable restraint on trade. Specifically, Section 1 of the Sherman Act declares illegal any “contract, combination, or conspiracy in restraint of trade.”[5] Section 2 prohibits actions to “monopolize or attempt to conspire to monopolize trade.”[6] Under the Sherman Act, there are two standards of liability. A restraint may be deemed per se illegal, meaning, on its face, it is an unreasonable restraint on trade.[7] Alternatively, if the court can not determine as a matter of law that a restraint is per se illegal, it conducts a “rule of reason” analysis to evaluate whether the restraint’s anticompetitive effects outweigh its procompetitive benefits.[8] If it is found that the Sherman Act is violated, the Clayton Act provides the victorious plaintiff with an opportunity to seek treble damages, which is threefold the damages sustained, the cost of the suit, and reasonable attorney’s fees.[9]
The NCAA’s Historical Antitrust Challenges
NCAA v. Board of Regents of the University of Oklahoma
The NCAA’s antitrust challenges gained significant attention with the landmark case NCAA v. Board of Regents of the University of Oklahoma, decided by the Supreme Court in 1984. This lawsuit, initiated by the University of Oklahoma and the University of Georgia, sought an injunction to prevent the NCAA from enforcing its television plan, which aimed to limit the total broadcasts of college football games and restrict the number of appearances by individual schools.[10] The Supreme Court upheld the Tenth Circuit’s decision, ruling that the NCAA’s television plan increased prices and reduced output without sufficient procompetitive justification.[11] The NCAA contended that college football is distinct from the NFL, operating in a separate market and thus enhancing consumer choice by providing an alternative to professional sports.[12] To maintain this differentiation, the NCAA argued that its eligibility rules surrounding amateurism were essential to create a unique product and protect the amateur status of student-athletes. This case is significant because the Court assumed that amateurism rules are both reasonable and necessary to differentiate college from professional sports, which is seen as pro-competitive.[13] Since this decision, the NCAA has used the Court’s dicta to argue that amateurism is inherently reasonable. However, subsequent cases have shown that while the NCAA’s rules may be reasonable to preserve amateurism, the concept of amateurism itself is not automatically valid.[14]
O’Bannon v. NCAA
The NCAA’s amateurism model faced significant challenges in O’Bannon v. NCAA. In 2014, Ed O’Bannon, a former UCLA basketball player, filed suit against the NCAA, EA Sports, and the Collegiate Licensing Company over the use of player images and likenesses in a popular video game without the athlete’s consent or compensation.[15] O’Bannon contended that the amateurism rules, which prohibit college athletes from receiving compensation for their name, image, and likeness, violated §1 of the Sherman Act.[16] The NCAA argued that, despite the amateurism rules restricting compensation for NIL, which is a restraint of competition, the pro-competitive effects of these rules outweigh the anticompetitive effects. They argued these effects included promoting competitive balance, fostering consumer demand for a separate market for amateur sports, and enhancing the educational services provided to student-athletes.[17] This argument relied on the Court’s dicta regarding amateurism in Board of Regents.[18]
Judge Claudia Wilken of the District Court for the Northern District of California cracked the NIL door open and ruled in favor of O’Bannon, finding that the NCAA was profiting off the NIL of student-athletes and that limiting athlete compensation to traditional scholarship value such as tuition, fees, and room and board, violated antitrust law.[19] Judge Wilken enjoined the NCAA from enforcing rules that prohibit schools from providing players with scholarships above the full cost of attendance and allowed for stipends of $5,000 per player per year, funded by player licensing revenues. However, on appeal, the Ninth Circuit reversed parts of Wilken’s decision, ruling that schools could only compensate athletes for up to the full cost of attendance and could not offer a $5,000 cash stipend.[20] While the plaintiffs gained the ability to receive compensation up to the full cost of attendance, including expenses beyond tuition, books, and room and board, the NCAA considered the decision a victory as it maintained the status of amateurism.[21]
Alston v. NCAA
Six years after the O’Bannon case, the NCAA faced another significant antitrust challenge that reached the Supreme Court, targeting the NCAA’s rules on limiting education-related benefits.[22] In Alston v. NCAA, Shawne Alston, a former running back at West Virginia University, filed a class action lawsuit on behalf of football players and men’s and women’s basketball players dating back to 2010.[23] Alston contended that the members of the class were not allowed to receive the full cost-of-attendance scholarships, which had been permitted as a result of O’Bannon. The Supreme Court upheld Judge Wilken’s prior ruling that the NCAA’s rules had a substantial anticompetitive effect in the market for student-athlete services.[24] The decision allowed schools to offer more comprehensive education-related benefits such as internships, computers, tutoring, and equipment[25] and up to $5,980 in academic achievement, known as the “Alston Awards.”[26]
While this decision focused solely on education-related compensation, Justice Kavanaugh’s concurrence raised serious red flags for the NCAA, which opened the door for future litigation. Kavanaugh wrote: “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate, and under ordinary principles of antitrust law, it is not evident why college sports should be any different.”[27] Furthermore, although the ruling did not address the rights of student-athletes to receive compensation for their NIL, it undermined the NCAA’s continued reliance on the dicta from the 1984 Supreme Court decision in Board of Regents.[28]
Evolution of NIL in the NCAA
NCAA Interim NIL Policy & Guidelines
No issue has challenged the NCAA’s distinction between amateur and professional athletes more than Name, Image, and Likeness (NIL) regulations.[29] Historically, student-athletes were prohibited from profiting from their NIL, preventing them from being paid to advertise, promote, or endorse commercial products or services.[30] However, on July 1, 2021, the NCAA divisions voted to approve an Interim NIL Policy, allowing college athletes to begin profiting off their NIL through endorsement deals.[31] This policy change came from mounting pressure from state laws that challenged the NCAA’s historical NIL restrictions and came a few weeks after the landmark Alston decision.[32] Despite this change, student-athletes must still adhere to NIL rules specific to their state if they are more restrictive than the policy set forth by the NCAA.[33]
Since the enactment of this new policy, the NIL landscape has been characterized as the “wild, wild, west.”[34] The landscape is muddled by competing state laws, varying interpretations, and policies, amendments or repeals of existing NIL legislation, and perceived lack of enforcement, creating significant uncertainty about what is permissible. In October 2022, the NCAA introduced new NIL guidelines to clarify permissible and impermissible actions regarding athletic department involvement in NIL activities.[35] While the guidelines allow athletic departments to engage NIL entities to inform student-athletes of NIL opportunities, they clearly prohibit schools from directly securing NIL opportunities for students or making any direct payments to them.[36] A more extensive list of the permissible and impermissible actions published by the NCAA is available here.
Rise of the Collectives
After the introduction of the Interim Policy, boosters, and local businesses have collaborated to pool their money and create “collectives” to facilitate endorsement deals to support athletes. Although collectives are often affiliated with specific schools, they operate as independent entities separate from the institutions themselves.[37] The NCAA’s primary concern with collectives is the potential for “pay-for-play” schemes and recruiting inducements.[38] In 2022, a most notable instance included a five-star recruit signing an agreement with a NIL collective promising $8 million by the end of his junior year.[39] Furthermore, the transfer portals have transformed into a quasi-free agency market where athletes seek the highest bidder for their services.[40] Consequently, the NCAA attempted to enforce NIL recruiting bans.[41] However, because collectives operate independently of the associated institutions, the NCAA has limited control over them. This was highlighted by an antitrust case brought by the Attorneys General from Tennessee and Virginia resulting in a preliminary injunction that prohibited enforcement of certain NCAA rules related to boosters and collectives’ ability to communicate with athletes before enrollment.[42]
The NCAA continues to lobby Congress to intervene and establish some sort of stability in the NIL space.[43] Although several federal bills have been introduced[44] in an attempt to create uniformity in the marketplace, Congress has yet to enact any legislation.[45] In February of 2024, in an attempt to regulate the space without risking another antitrust suit, the NCAA implemented several NIL initiatives. These include a voluntary registration process for NIL service providers, a de-identified disclosure database for athlete NIL deals of $600 or more to promote transparency, penalties for athletes who fail to disclose NIL agreements within 30 days, and the development of educational resources, including standardized NIL contract terms.[46]
NIL Era Surge in Antitrust Litigation
The rulings in Board of Regents, O’Bannon, and Alston, have paved the way for student-athletes to bring subsequent class action lawsuits, including Carter v. NCAA,[47] Hubbard v. NCAA,[48] and House v. NCAA.[49] A common theme runs throughout these three lawsuits against the NCAA and several conferences: while the NCAA, conferences, and individuals institutions collectively generate billions of dollars from the value produced by talented student-athletes, these athletes receive none of that revenue.[50] These three class actions aim to ensure that athletes begin receiving a fair share of the financial benefits generated by their contributions.
House v. NCAA
On June 15, 2020, Grant House, a former Arizona State swimmer, Tymir Oliver, a former Illinois football player, and Sedona Price, a former TCU basketball player, filed a complaint seeking backpay for lost NIL revenues, including those from broadcasts, video games, and third-party deals that could have occurred dating back to June 15, 2016.[51] They also pursued a cut of future broadcast revenues for athletes at power-conference schools.[52] Importantly, the plaintiffs requested class certification to represent approximately 25,000 college athletes who were unable to benefit from NIL opportunities from 2016 to the present.[53] The plaintiffs claim that the NCAA conspired to restrain their ability to earn money through NIL, in violation of §1 of the Sherman Act. House seeks to maximize the full value of NIL deals, which are currently limited to receiving compensation from third parties, with NCAA rules prohibiting any form of NIL payments directly from the NCAA, conferences, or schools.[54]The case was filed in the United States District Court for the Northern District of California and will be heard by Judge Wilken, who also presided over O’Bannon and Alston.[55] This case is the first to directly address the “pay-for-play” issue head-on, as the Court in Alston specifically stated that its review was narrow and did not cover compensating student-athletes beyond education-related benefits.[56] House has survived a motion to dismiss and the trial was planned for January 2025.[57]
Hubbard v. NCAA
On April, 4, 2023, Chuba Hubbard, a former Oklahoma State University football player, and Kiera McCarrell, a former track and field athlete from the University of Oregon and Auburn University, filed a class action against the NCAA and several conferences.[58] They seek to recover damages for not being allowed to receive Alston awards.[59] Specifically, Hubbard seeks to recover damages for all current and former Division I student-athletes who were eligible to receive an academic achievement award between April 1, 2019, and the date of the class certification.[60]
Carter v. NCAA
Carter v. NCAA is an antitrust lawsuit filed in California aiming to prevent the NCAA from enforcing rules that prohibit athlete compensation.[61] The plaintiffs in this case include former Duke football player DeWayne Carter, former Stanford soccer player Nya Harrison, and former TCU basketball player Sedona Prince.[62] While the House case seeks to share broadcast revenue related to student-athletes’ NIL value, the Carter case seeks to secure broadcast revenue for student-athletes’ performance.[63]
Proposed House Settlement Details
Proposed Financial Terms:
On May 23, 2024, the NCAA announced that the power five college athletics conferences and the NCAA reached a $2.77 billion settlement in the consolidated antitrust litigation involving House, Hubbard, and Carter.[64] On July 26, 2024, the plaintiffs filed a motion for preliminary settlement approval with the Northern District Court of California, clarifying that the proposed settlement would be $2.576 billion and providing further details about the agreement.[65] Without settling, the NCAA risked facing treble damages (three times the awarded damages), potentially amounting to as much as $20 billion, which could have driven the NCAA into bankruptcy.[66]
- Retrospective Payment
Under the terms of the proposed settlement, the NCAA and the athletic conferences comprising 363 Division I colleges and universities would pay $2.576 billion over ten years to a class of former and current student-athletes who were denied the opportunity to earn money from NIL deals dating back to 2016.[67] The backpay damages date back to 2016 due to the statute of limitations, which is how far back a specific legal claim can be addressed.[68] This settlement will compensate close to 25,000 athletes.[69] $1.976 billion will be for the NIL damages claims (“NIL Settlement Fund”)[70] and $600 million will be for additional compensation (“Additional Compensation Settlement Fund”) to provide relief for the athletic services claims.[71]
- Settlement Classes
The plaintiffs seek to certify four settlement classes. One class, under Rule 23(b)(2), aims to obtain declaratory and injunctive relief that would permit Division I schools to share revenue directly with college-athletes.[72] The other classes, under Rule 23(b)(3), seek damages for back-pay.[73] The damages will be allocated among athletes in three categories: (1) the Settlement Football and Men’s Basketball Class; [74] (2) the Settlement Women’s Basketball Class;[75] and (3) the Settlement Additional Sports Class.[76] For a more detailed breakdown of the class and the type of claimed damages, please review Exhibit A.
- Future Revenue Share
Furthermore, the settlement proposes injunctive relief that would allow the NCAA and conferences to establish a revenue-sharing model, allowing (but not requiring) schools to share approximately $20 million annually with their students, which is roughly 22% of the average annual revenue of power-conference schools.[77] That will be based on money brought in from media rights contracts, ticket sales, sponsorships, etc. To date, there has been no guidance or mandate on how the schools must choose to distribute these funds among their student-athletes, but according to Jeffrey Kessler, a plaintiff lawyer in the House case, it is said that this will be based on athletes’ market value.[78]
- Payment Responsibility
The proposed $2.576 billion settlement is projected to be funded by the NCAA, the defendant conferences in the consolidated lawsuits, the power five conferences, the Football Championship Subdivision, and Division I conferences that don’t play football.[79] For a more detailed breakdown, review the table below. The NCAA will cover its portion of the bill through spending reductions and new revenue by tapping into its reserves.[80] The conferences will fund their shares by withholding money from future NCAA distributions, primarily sourced from the men’s basketball tournament.[81]
Initial Financial Breakdown of the $2.77 Billion Settlement[82]
| Responsible Party | % | $ Amount (approximate) |
| NCAA | 41% | $1.2 Billion |
| Conferences that were Co-Defendants in the Consolidated Lawsuits – Ex: Big Ten, Southeastern, Big 12, Atlantic Coast and PAC-12 | 24% | $670 Million |
| Remaining Power-Five Conferences that Compete for College Football Playoffs | 10% | $280 Million |
| Football Championship Subdivision – Ex: Big Sky and the Ivy League | 13% | $364 Million |
| Division I Conferences that do not Play Football – Ex: Big East | 12% | $336 Million |
Other Impactful Terms:
- Third Party NIL Enforcement
Under the proposed settlement terms, student-athletes must report any third-party NIL deals exceeding $600 to a centralized database monitored by the NCAA and power conferences.[83] Additionally, the settlement permits the establishment of an enforcement agency to oversee these reported NIL deals, ensuring that the NIL deals qualify as “fair market value.”[84] This initiative aims to prevent “pay-for-play” agreements and create a more equitable NIL landscape, addressing the NCAA’s previous challenges in regulating the NIL space following an injunction preventing them from enforcing their recruitment rules against collectives.[85] However, the settlement does not override existing state laws on NIL. Any conflict between state laws and the settlement terms could lead to further legal issues, underscoring the NCAA’s need to continue advocating for federal NIL legislation.[86]
- Increased Roster Limit for Scholarships
A key change introduced by the settlement is the removal of scholarship limits and the expansion of roster sizes.[87] This adjustment allows schools to award scholarships up to the new roster limits for each sport. A detailed summary of these new limits can be viewed here. Importantly, this change does not impact potential walk-ons, as schools must only adhere to the designated roster cap. For instance, a football team could consist of 90 scholarship players and 15 walk-ons, remaining within the 105-player roster limit.[88] Recognizing that scholarship limits were vulnerable to further antitrust challenges, the NCAA took a conservative approach by including this update in the settlement terms.[89] The increased roster limits and elimination of the scholarship cap offer teams greater flexibility in allocating scholarship funds, allowing schools to distribute partial scholarships more broadly across their rosters, much like what has been done in baseball for some time.[90] According to three power four administrators, institutions will be permitted to count up to $3 million of the additional scholarship expense from the new roster limits towards the new revenue-sharing cap of approximately $20 million.[91] Whether schools prefer a higher or lower cap will depend on their individual resources; however, many institutions will aim to maximize the amount they can allocate to student-athletes in order to remain competitive.[92]
Challenges to Finalizing Settlement
While the proposed settlement would revolutionize college sports by allowing schools to pay their student-athletes directly, several barriers must be overcome for the agreement to become official.
Term Sheet
Firstly, as of May 23, 2024, the initial terms of the settlement were just a term sheet.[93] There were a number of challenging details to sort out and negotiate, such as which schools would be responsible for paying what, what athletes would be receiving the bulk of the proposed $2.8 billion in backpay, etc. On July 26, 2024, the plaintiffs filed a formal settlement proposal to the Northern District of California to be reviewed and approved by Judge Wilken.[94] This motion provided more charity around what financial consideration certain categories of athletes will be receiving, such as men’s football players and men’s basketball players, on average projected to receive $91,000 for broadcast NIL-related damages, up to $4,000 for videogame NIL damages, and $40,000 for other compensation damages.[95] However, these remain estimated and not guaranteed numbers and will depend on several factors, such as what sports athletes played, what other NIL deals they received, and when they played.
Fontenot v. NCAA
Another hurdle for the approval of the House settlement is the Fontenot v. NCAA case, a separate antitrust class action lawsuit filed in Colorado. This case argues that rules prohibiting “pay-for-play” compensation violate antitrust law, similar to the claims in Carter v. NCAA.[96] The class action, brought by former University of Colorado athletes Alex Fontenot (football) and Mya Hollingshed (basketball), alleges that colleges and universities, as horizontal competitors in the market for labor services provided by college athletes, are engaged in wage-fixing by setting limits on compensation.[97] The plaintiffs seek to have athletes compensated according to their free market value.[98] This case is unique in that it challenges the entire market of revenue generated by student-athletes, not just NIL restrictions or Alston payments. The plaintiffs argue that, like any other industry involving athletes, the revenue should be shared with the college athletes who play a significant role in generating it.
- NCAA & House Attorney’s Consolidation Attempt
In May 2024, the plaintiff’s attorneys in the House, Carter, and Hubbard cases filed a motion through the MDL process, seeking to consolidate the Fontenot case into the proposed settlement, a motion that the NCAA supported.[99] However, the panel denied this request, keeping the cases separate.[100] Following this, the NCAA attempted to transfer the Fontenot case to the Northern District of California under the normal transfer principles outlined in the Federal Rules of Civil Procedure (Section 14.04(a)), where it would likely have been consolidated with the House settlement after a motion for consolidation.[101] This motion was also denied, leaving the Fontenot case in Colorado for the time being. Jeffrey Kessler,[102] one of the plaintiff’s attorneys, believes that if the settlement is approved, it will resolve the claims in Fontenot, regardless of where the case is heard.[103] Additionally, Judge Wilken has indicated that if the proposed House settlement addresses Fontenot’s claims, she will not allow the class action suit to proceed in Colorado.[104] The full impact of the Fontenot case remains unseen.
II. Opt-Out Option for Athletes
Athletes involved in the House settlement case have the option to opt out, allowing them to retain their legal right to appeal the settlement or pursue future litigation. That decision opens the door for athletes to withdraw from the House case if they believe the Fontenot case could result in a more favorable financial outcome.[105] A significant number of opt-outs could potentially influence Judge Wilken’s decision to approve the House settlement.[106] In the meantime, the Fontenot case will stay in Colorado court, where plaintiff’s representatives argue their claims are broader than the Carter case.[107] The broader scope of the Fontenot case may encourage other college athletes to either opt-out or object to the House settlement, seeking alternative resolutions.
Cornelio v. NCAA
On August 6, 2024, Riley Cornelio, a former TCU baseball player, filed a new antitrust lawsuit in Colorado against the NCAA, seeking class certification for college baseball and hockey players.[108] The lawsuit is backed by the same legal team representing the plaintiffs in Fontenot v. NCAA.[109] Cornelio contends that the NCAA’s cap on the number of scholarships a school can offer to student-athletes constitutes wage fixing among horizontal competitors in a market for services, in violation of §1 of the Sherman Act.[110] In baseball, NCAA bylaws permit only 11 scholarships per team, despite the average roster comprising about 27 players.[111] While the proposed settlement seeks to abolish scholarship limits in favor of roster limits, the plaintiffs argue that the scholarship limit has been artificially low and are seeking back pay damages.[112] Additionally, another pending antitrust case could offer athletes an alternative path to pursue damages if they opt out of the House settlement, while also serving as an additional factor for Judge Wilken to consider in her decision to approve the proposed settlement terms.
Pending Approval by Judge Wilken
None of the proposed terms will take effect unless Judge Wilken approves the settlement. Under Rule 23 of the Federal Rules of Civil Procedure, a federal judge must preliminarily approve the proposed terms of a class action settlement.[113] On July 26, 2024, the plaintiffs filed a motion seeking Judge Wilken’s preliminary approval. Her role is to review the terms to ensure they are fair, reasonable, and adequate for the class members set to receive compensation. She will focus particularly on the formula used to determine how much each athlete will be paid. This review process is expected to take several months, with a hearing scheduled for September 5, 2024, to discuss preliminary approval.[114] If granted, there will be a set period during which class members will be notified and given the opportunity to opt-out or object to the settlement terms.[115] After this period, a final approval hearing will take place, where Judge Wilken will decide whether to approve the settlement, at which point it will become effective.[116] This is not likely to be until late 2024 or early 2025.[117]
Erica Hamilton, a Toronto native, is a 3L at the University of Miami School of Law, where she is pursuing both a J.D. and LL.M. in Entertainment, Arts, & Sports Law. She has gained valuable experience through internships with Diamond Baseball Holdings and the PGA TOUR and is currently contributing her skills to the F1 Miami Grand Prix. Passionate about the intersection of sports, business, and law, Erica is committed to advancing her career and making a meaningful impact in the sports industry.
[1] Peter Carfagna, Representing the Professional Athlete, at Page 3.
[2] NCAA Constitution (which has since been amended in 2022).
[3] 2023-2024 NCAA Division I Manual.
[4] Peter Carfagna, Representing the Professional Athlete, at Page 3.
[5] 15 U.S.C § 1.
[6] 15 U.S.C. § 2.
[7] Peter Carfagna, Sports and the Law, Examining the Legal Evolution of America’s Three “Major Leagues”, at Page 83.
[8] Id.
[9] 15 U.S.C. § 15.
[10] Mary H. Tolbert, The Lasting Impact of NCAA v. Bd. of Regents of the University of Oklahoma: The Football Fan Wins, Oklahoma Bar Journal (October 2018).
[11] NCAA v. Board of Regents, 468 U.S. 85 (1984).
[12] Peter Carfagna, Representing the Professional Athlete, at Page 40.
[13] Sean Gregory, Why the NCAA Should Be Terrified of Supreme Court Justice Kavanaugh’s Concurrence, Time (June 21, 2021) (“The NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports. There can be no question but that it needs ample latitude to play that role, or that the preservation of the student-athlete in higher education adds richness and diversity to intercollegiate athletics and is entirely consistent with the goals of the Sherman Act.”).
[14] Id.
[15] O’Bannon v. NCAA, 7 F. Supp 3d 955 (N.D.Cal. 2014).
[16] Peter Carfagna, Representing the Professional Athlete, at Page 42.
[17] Id. at Page 44.
[18] Id.
[19] 2023 NCAA Compliance Report, Husch Blackwell, at Page 4.
[20] O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015).
[21] Peter Carfagna, Representing the Professional Athlete, at Page 45.
[22] Billy Witz, Big Money. College Athletes and the N.C.A.A.: A Timeline, New York Times (May 29, 2024).
[23] Peter Carfagna, Representing the Professional Athlete, at Page 45.
[24] Alston v. NCAA, 141 S. Ct. 2141 (2021).
[25] Adam Liptak, Supreme Court Backs Payments to Student-Athletes in NCAA Case, New York Times (June 21, 2021).
[26] 2022 NCAA Compliance Report, Husch Blackwell, at Page 5.
[27] Paul Myerberg, Supreme Court Justice Brett Kavanaugh rips NCAA in antitrust ruling, says it ‘is not above the law’, USA TODAY (June 21, 2021) (Kavanaugh also stated that “the NCAA is not above the law,” and “the NCAA’s business model would be flatly illegal in almost any other industry in America.”).
[28] Sean Gregory, Why the NCAA Should Be Terrified of Supreme Court Justice Kavanaugh’s Concurrence, Time (June 21, 2021).
[29] 2022 NCAA Compliance Report, Husch Blackwell, at Page 8.
[30] Alan Blinder, College Athletes May Earn Money From Their Fame, NCAA Rules, The New York Times (June 30, 2021).
[31] Joseph Salvador, NCAA Approves Interim NIL Policy, Change Will Take Effect Thursday, Sports Illustrated (June 30, 2021).
[32] Alan Blinder, College Athletes May Earn Money From Their Fame, NCAA Rules, The New York Times (June 30, 2021).
[33] 2022 NCAA Compliance Report, Husch Blackwell, at Page 8.
[34] 2024 NCAA Compliance Report, Husch Blackwell, at Page 8.
[35] 2023 NCAA Compliance Report, Husch Blackwell, at Page 6.
[36] Institutional Involvement in a Student-Athlete’s Name, Image and Likeness Activities, NCAA (October 26, 2022).
[37] The On3 Guide to Collectives Around the Nation, On3NIL (August 25, 2022).
[38] 2022 NCAA Compliance Report, Husch Blackwell, at Page 8.
[39] Stewart Mandel, Five-Star Recruit in Class of 2023 Signs Agreement with Collective that Could Pay Him More than $8 Million, The Athletic (March 11, 2022)(The contract contained explicit language that stated nothing in the agreement constitutes any form of inducement for the athlete to enroll at any school or join any team).
[40] Josh Goldberg, The Transfer Portal Has Changed the Dynamic of College Sports, Greenspoon Marder (January 18, 2024).
[41] Nicole Auerbach, Federal Judge Blocks NCAA from Enforcing NIL Rules, The Athletic (February 23, 2024).
[42] Id. (Attorneys general in Tennessee and Virginia filed lawsuits against the NCAA alleging NIL recruiting rule constitutes a horizontal restraint on trade in violation of Section 1 of the Sherman Act and the United States District Court for the Eastern District of Tennessee held that the States are entitled to a preliminary injunction preventing the NCAA from enforcing the NIL-recruiting ban).
[43] Noah Henderson, Division-I Conferences Unite to Advocate for Federal NIL Legislation, Sports Illustrated (November 2, 2023)(28 D1 athletic conferences joined forces to lobby for increased NIL standardization).
[44] Kristi Dosh, Four New Federal NIL Bills Have Been Introduced in Congress, Forbes (July 29, 2023).
[45] 2024 NCAA Compliance Report, Husch Blackwell, at Page 10.
[46] Id.
[50] Nathan Kalman-Lamb, The Case to End College Football, Sportico (May 22, 2024) (although 42 athletic departments produced more than $100 million in revenue in 2021-2022, universities continue not to directly compensate the campus athletic workers responsible for producing that value).
[51] Cole Forsman, How House v. NCAA could change the landscape of college sports, Sports Illustrated (September 21, 2023).
[52]Id.
[53] Id.
[54] Per Bylaw 12.5.1.1-(f), institutions may not compensate a student-athlete in exchange for the use of their NIL. Bylaw 16.02.3 generally prohibits an institutional staff member or booster from providing a student-athlete with a special arrangement or benefit.
[55] 2023 NCAA Compliance Report, Husch Blackwell, at Page 5.
[56] Alston v. NCAA, 141 S. Ct. 2141 (2021).
[57] Anthony Bruno, House v. NCAA trial could have a ripple effect far beyond NIL, SBJ (November 27, 2023).
[59] Kassandra Ramsey, Breaking Down Hubbard v. NCAA Class Action Case, Business of College Sports (September 26, 2023) (“Alston awards” are education-related benefits and financial rewards up to $5,980, provided to college athletes directly from their respective schools).
[60] Id.
[62] Kassandra Ramsey, Breaking Down Hubbard v. NCAA Class Action Case, Business of College Sports (September 26, 2023).
[63] John Zenor, The NCAA is looking at how to get athletes paid. That likely won’t solve its legal headaches, Associated Press (December 8, 2023).
[64] Pete Thamel, NCAA, Big Ten, ACC, Big 12 vote to settle House v. NCAA case, ESPN (May 21, 2024).
[65] In Re College Athlete NIL Litigation: Plaintiffs’ Notice of Motion and Motion for Preliminary Settlement Approval.
[66] Nicole Auerbach, How the House v. NCAA settlement could reshape college sports: What you need to know, The Athletic (May 20, 2024).
[67] In Re College Athlete NIL Litigation: Plaintiffs’ Notice of Motion and Motion for Preliminary Settlement Approval, Distribution Plan
[69] Ralph D. Russo, NCAA votes to accept $2.8 billion settlement that could usher in dramatic change for college sports, Associated Press (May 23, 2024).
[70] In Re College Athlete NIL Litigation: Plaintiffs’ Notice of Motion and Motion for Preliminary Settlement Approval, Distribution Plan (This will include damages for Broadcast NIL ($1,815,000,000), Videogame NIL ($71,500,000), and Lost Opportunities ($89,500,000).
[71] In Re College Athlete NIL Litigation: Plaintiffs’ Notice of Motion and Motion for Preliminary Settlement Approval, The Settlement Consideration and Release of Claims.
[72] In Re College Athlete NIL Litigation: Plaintiffs’ Notice of Motion and Motion for Preliminary Settlement Approval, The Settlement.
[73] Id.
[74] Id. (Defined as all student-athletes who have received or will receive full GIA scholarships and compete on, competed on, or will compete on a Division I men’s basketball team or an FBS football team, at a college or university that is a member of one of the Power Five Conferences (including Notre Dame), and who have been or will be declared initially eligible for competition in Division I at any time from June 15, 2016 through September 15, 2024.)
[75] Id. (defined as all student-athletes who have received or will receive full GIA scholarships and compete on, competed on, or will compete on a Division I women’s basketball team at a college or university that is a member of one the Power Five Conferences (including Notre Dame), and who have been or will be declared initially eligible for competition in Division I at any time from June 15, 2016 through September 15, 2024).
[76] Id. (defined as Excluding members of the Football and Men’s Basketball Class and members of the Women’s Basketball Class, all student-athletes who compete on, competed on, or will compete on a Division I athletic team and who have been or will be declared initially eligible for competition in Division I at any time from June 15, 2016 through September 15, 2024).
[77] In Re College Athlete NIL Litigation: Plaintiffs’ Notice of Motion and Motion for Preliminary Settlement Approval, Introduction (Economic expert Dr. Daniel Rascher estimates that the annual Pool amount will start at more than $20 million per school in the 2025-26 school year and grow to $32.9 million per school in 2034-35).
[78] Ranjan Jindal, Breaking Down the House v. NCAA Settlement and the Possible Future of Revenue Sharing in College Athletics, The Chronicle (May 27, 2024).
[79] NIL Settlement, Cullen Dykman (June 7, 2024).
[80] Billy Witz, The N.C.A.A.’s Landmark Athlete-Pay Settlement, Explained, New York Times (May 24, 2024).
[81] Id.( Each conference will be proportionally responsible for its share based on its representation in the men’s basketball tournament, therefore, a conference such as the Ivy League, who has won more tournament games than Southland Conference, would be responsible for more).
[82] As of May 24, 2024.
[83] Justin Williams, What’s the Future of NIL Collectives After the House v. NCAA Settlement?, The Athletic (August 1, 2024).
[84] Id.
[85] Justin Williams, House v. NCAA Settlement Takes Next Step Toward Schools Paying Athletes, The Athletic (July 26, 2024).
[86] Justin Williams, What’s the Future of NIL Collectives After the House v. NCAA Settlement?, The Athletic (August 1, 2024).
[87] Seth Emerson, 105 is College Football’s New Key Number. What Will it and Other NCAA Roster Caps Change?, The Athletic (July 30, 2024).
[88] Justin Williams, House v. NCAA Settlement Takes Next Step Toward Schools Paying Athletes, The Athletic (July 26, 2024).
[89] Ranjan Jindal, Breaking Down the House v. NCAA Settlement and the Possible Future of Revenue Sharing in College Athletics, The Chronicle (May 27, 2024).
[90] Id.
[91] Ross Dellenger, Could a new College Compensation Model be the End for Football Walk-Ons?, Yahoo Sports (May 9, 2024).
[92] Id.
[93] Michael McCann, NCAA’s Antitrust Settlement Has Plenty of Red Flags, Sportico (May 22, 2024)
[94] Amanda Christovich, Landmark Settlement Proposal Filed in House v. NCAA Case, FOS (July 26, 2024).
[95] Id.
[96] Nicole Auerbach, What to Know About House v. NCAA Settlement and a Historic Day for College Sports, The Athletic (May 24, 2024).
[97] Katie Arcieri, Colorado Antitrust Suit Against NCAA Keeps Athlete Claims Alive, Bloomberg Law (May 28, 2024).
[98] Nicole Auerbach, What to Know About House v. NCAA Settlement and a Historic Day for College Sports, The Athletic (May 24, 2024) (Garrett Broshuis, a plaintiff attorney in the Fontenot case stated, “We brought the Fontenot case to fight for better rights for the next generation of college athletes and while we’re still waiting to fully assess this proposed settlement agreement, we do have some concerns based on what is reported, we will continue to fight for these college athletes that deserve continued representation.”).
[99] SportWise: A Podcast About Sports & Law (Episode 64) at 10:50.
[100] Id. at 11:20.
[101] Id. at 11:55.
[102] Daniel Libit, Kessler Defends House v. NCAA Deal Amid Fontenot Case Flak, Sportico (May 22, 2024) (Jeffrey Kessler, also the Plaintiff’s attorney in Alston v. NCAA, stated he would be “very, very pleased” if the House settlement is completed and approved, saying it would lay the groundwork for a new college sports system that is “fair and transformative for the athletes.”).
[103] Nicole Auerbach, What to Know About House v. NCAA Settlement and a Historic Day for College Sports, The Athletic (May 24, 2024).
[104] Id.
[105] Ben Portnoy, Fontenot Case Remains Ongoing Twist in House Settlement Saga, SBJ (May 24, 2024).
[106] Michael McCann, NCAA’s Antitrust Settlement Has Plenty of Red Flags, Sportico (May 22, 2024).
[107] Michael McCann, Awaiting House, Fontenot v. NCAA Presses on With More Plaintiffs, Sportico (July 25, 2024).
[108] Former College Baseball Player Sues, Says NCAA, Conferences Fixed Wages with Scholarship Limits, Associated Press (August 7, 2024).
[109] Id.
[110] Mike Scarcella, NCAA Sued Over Limits on Scholarships for Some Athletes, Reuters (August 7, 2024).
[111] Id.
[112] Michael McCann, House Settlement Faces New Onslaught of Challenges, Sportico (August 11, 2024).
[113] Fed. R. Civ. P. 23(e)(1).
[114] Matthew Pearce, Houston Christian May Call Legal Audible After Loss to NCAA, Sportico (July 25, 2024).
[115] Nicole Auerbach, What to Know about House v. NCAA Settlement and a Historic Day for College Sports, The Athletic (May 24, 2024).
[116] Id.
[117] Daniel Murphy, Court Filing Reveals Terms of NCAA Antitrust Lawsuits Settlement, ABC News (July 26, 2024).
