Implications of the Proposed Settlement on the Future of College Sports
By Erica Hamilton
(Part I appeared in the last issue of Sports Litigation Alert.)
Objections to the Settlement
- Schools Challenging the Proposed Settlement
Since the proposed settlement was announced in May 2024, Division I schools not named as defendants in the lawsuits are expected to bear approximately $990 million of the settlement costs, sparking significant backlash from smaller schools.[1] Big East Commissioner Val Ackerman proposed an alternative payment model that would be more equitable for non-power four conferences, gaining the support of 21 other schools, although this support had no binding legal impact.[2] The first official legal objection came on June 20, 2024, when Houston Christian University (HCU) filed an intervention request against the proposed settlement, citing five key arguments: HCU is not a named defendant; was not involved in settlement negotiations; did not have its interests represented; has not been shown to deprive its athletes of any NIL, broadcasting, or video game revenue opportunities; and never agreed to the settlement.[3] However, Judge Wilken denied HCU’s motion, ruling that they failed to meet the criteria for permissive injunction and lack standing to object since they are not a class member.[4] Despite this, HCU has appealed to the U.S. Court of Appeals for the Ninth Circuit.[5]
- Fontenot & Cornelio Objections to the Settlement
On August 9, 2024, the attorneys representing the plaintiffs in the Fontenot and Cornelio cases requested that Judge Wilken deny preliminary approval of the House settlement.[6] They aimed to keep their class actions separate to protect their class members’ claims from being absorbed into the proposed settlement. They also argue that the House settlement’s financial terms are highly favorable to the NCAA, with the proposed $2.8 billion being only a fraction of what athletes are entitled to.[7] The plaintiffs estimate that claims in the Fontenot case could reach up to $24 billion, yet the settlement would yield only around $600 million, and the Cornelio case, with claims worth over $300 million, receives no financial remedy under the settlement.[8] Additionally, the objection contends that the settlement will continue to shortchange student-athletes, particularly women, of the compensation they deserve.[9] Judge Wilken has not yet ruled on these motions, so it remains uncertain whether they will impact the final approval of the settlement.
Division I Former Rowers Objection to the Settlement
On August 9, 2024, Grace E. Menke, a former captain of Yale University’s Division I crew team, along with five other rowers, filed an objection to the proposed settlement, arguing that it would disproportionately benefit male athletes.[10] They pointed out that most female athletes would receive only $125 in damages, while “thousands of male football and basketball players will be paid more than $100,000.”[11] The rowers contend that the NCAA has historically failed to promote women’s sports, limiting their opportunities to earn compensation for their NIL.[12] This settlement, they argue, only reinforces those disparities by allocating the majority of the damages to revenue-generating sports like football and men’s basketball.[13]
- Objection from Plaintiffs in a Pending Lawsuit Against the Ivy League
In March 2023, Tamenang Choh, a Brown University graduate, and Grace Kirk, a senior at Brown, filed a complaint in Connecticut’s federal district court against the Ivy League, seeking class certification for all Ivy League athletes recruited to play sports from March 7, 2019, to a future date when the challenged conduct ceases.[14] They argue that the Ivy League has unlawfully conspired not to pay Ivy League athletes “any compensation” or reimburse them for education-related expenses in exchange for their athletic services.[15] Although the Ivy League, and its schools are not defendants in House, Hubbard, or Carter, the settlement would impact Kirk’s claims. As a Division I athlete, she and others like her would be expected to release their claims against the Ivy League under the settlement terms.[16] Kirk and her fellow athletes are asking Judge Wilken to deny the motion for preliminary settlement approval to the extent that it releases their claims.[17] This objection was subsequently withdrawn on September 3, 2024, when Choh and Kirk were reassured by the parties to the Settlement that it would not impact their claims.[18]
Title IX Implications
Title IX Background
Title IX protects people from discrimination based on sex in education programs or activities that receive federal financial assistance.[19] The statute specifically states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Title IX Requirements
Athletic programs fall within the scope of educational programs and activities and have three requirements under Title IX. Firstly, women and men must be provided equal opportunities to participate in sports.[20] Secondly, female and male athletes must receive athletics scholarship dollars that are proportional to their participation.[21] Lastly, female and male athletes must be treated equally in the provision of equipment and supplies; scheduling of games and practice time; travel and daily allowance/per diem; access to tutoring; coaching; locker rooms; practice and competitive facilities and services; publicity and promotions; support services; and recruitment of student-athletes.[22]
Title IX Compliance
For an institution to comply with Title IX, it must meet the following requirements:[23]
- For participation requirements, institution officials must meet one of the following three tests. An institution may:
- provide participation opportunities for women and men that are substantially proportionate to their respective rates of enrollment of full-time undergraduate students;
- demonstrate a history and continuing practice of program expansion for the underrepresented sex;
- fully and effectively accommodate the interests and abilities of the underrepresented sex; and
- female and male student-athletes must receive athletics scholarship dollars proportional to their participation; and
- equal treatment of female and male student-athletes in the areas mentioned above.
Title IX Uncertainty
As expressed in Exhibit A, it is projected that if approved, about 90% of the settlement payout will be allocated to football and men’s basketball players.[24] The proposed settlement does not address how or if Title IX regulations would be implicated in the retroactive payment and future revenue share model and whether those payments must be made proportionally to males and females.
Retrospective Payments
Currently, it is proposed that the back payments would come from the NCAA and go into a “central fund,” which the plaintiff’s lawyers would then direct to the student-athletes based on the agreed upon formula (estimates highlighted in Exhibit A).[25] There is an argument that because the money does not pass through the institutions, that Title IX compliance requirements is not triggered.
Prospective Payments
Moving forward, schools will be allowed to directly pay their student-athletes up to 22% of the revenue generated from media rights deals, initially projected to be around $20 million, with expectations for growth. Since these funds come directly from the school, which qualifies as an “education program or activity receiving federal financial assistance,” many believe that Title IX should apply, requiring that the $20 million be equally distributed between men’s and women’s student-athletes. However, there is also an argument that since the revenue sharing is classified as “internal NIL payments” from broadcast rights and ticket sales, these payments should be based on market value and not mandated to be distributed equally between male and female athletes.[26] In response, some argue that women’s sports have historically been underrepresented in the media due to a lack of investment, limiting their NIL opportunities.[27] They contend that women’s sports should not be further disadvantaged by receiving, on average, $125 compared to the $100,000 received by male basketball and football players.[28]
NCAA’s National Standard Pursuit
Given the uncertainty surrounding the implications of Title IX in the proposed settlement, schools are likely to adopt varied strategies for distributing their 22% revenue share, influenced largely by their risk tolerance.[29] Some institutions have already declared their intention to allocate the funds equally between men’s and women’s sports, while others may opt to distribute the funds to the sports that generate the highest broadcast revenue, such as football and men’s basketball. Joseph Harroz Jr., President of the University of Oklahoma, has emphasized that a key distinction between professional and collegiate sports is the presence of multiple sports on campus, many of which do not generate revenue for the institution.[30] Furthermore, while 75% of Olympians come from college sports, many of which do not generate income, they remain crucial to society and integral to college athletics.[31] Consequently, the NCAA is advocating for a national standard from Congress or the U.S. Department of Education’s Office for Civil Rights to address the pressing questions related to Title IX and the settlement.[32]
Impact on Institutional Investors and Collectives
Rise of Private Equity in College Sports
The proposed settlement terms impose unexpected financial pressures on all Division I NCAA schools. Not only are schools receiving reduced revenue to contribute towards backpay damages,[33] but they are also allowed to start distributing approximately $20 million directly to student-athletes. While this distribution isn’t mandatory, it becomes essential for maintaining competitiveness and attracting top talent. Given these heightened financial constraints and the ongoing need to modernize facilities, schools will need to generate additional revenue just to sustain their programs, let alone make them competitive.[34] Relying solely on donor contributions will not suffice, and even the wealthiest institutions will likely need to seek external investors to bridge the gap.[35]
The University of North Carolina (UNC) has taken a clear stance against private equity investment in its athletic programs.[36] Athletic Director Bubba Cunningham has revealed that while UNC has received interest from over half a dozen private equity firms, this type of funding doesn’t align with the university’s current priorities.[37] However, with the rising costs associated with running athletic departments, it’s possible that schools like UNC may eventually consider leveraging the cheaper capital offered by private equity.[38] Another critical decision on the horizon is whether to adopt a more professional sports-like model by bringing more operations in-house, such as media rights management, instead of continuing to outsource these functions.[39] Private equity firms could play a pivotal role in streamlining operations and maximizing revenue if more functions are brought under the direct control of athletic departments. The challenge will be balancing the short-term returns that private equity firms typically seek with the longer-term financial goals of college athletic programs. Private equity has already made its mark in college sports through companies like Learfield and Playfly, which manage multimedia rights for many top-tier athletic departments and are backed by private equity firms.[40]
College-Specific Investment Funds
Immediately following the announcement of the proposed settlement, Redbird Capital[41] and Weatherford Capital[42] unveiled a partnership called College Athletic Solutions (CAS).[43] This initiative aims to invest between $50 million and $200 million in select universities, with plans to potentially channel up to $2 billion into five to ten athletic departments nationwide, beginning with Florida State University.[44] CAS’s approach involves providing upfront funding and operational expertise to athletic departments in exchange for a share of the additional revenue generated through the partnership.[45] Unlike traditional private equity, CAS will not take an equity stake in the athletic programs or demand fixed payments for the initial capital.[46]
Collectives as Marketing Arms for Colleges & Universities
While the proposed settlement permits schools to pay their student-athletes directly, collectives are not projected to go anywhere. It is likely they will continue to play a key role in distinguishing one school from another, with revenue share payments serving as the “base pay” and collectives providing additional “bonuses.”[47] Additionally, the settlement introduces a change allowing collectives to be integrated as in-house marketing agencies that manage revenue sharing for athletic departments.[48] Relatedly, the settlement might give the NCAA the power to enforce its pay-for-play restrictions against schools directly.[49] Because of this, well-resourced athletic departments may prefer to keep collectives as external agencies to offer additional NIL opportunities for athletes as a “sweetener” and keep collectives outside the purview of the NCAA.[50]
Employees, Unionization & Collective Bargaining
Should Student-Athletes be Considered Employees?
Under the proposed settlement terms, schools will be allowed to pay student-athletes directly for the first time. This has raised questions about whether student-athletes should be classified as “employees.” If they were to be considered employees, they could form unions, engage in collective bargaining, collect benefits such as health insurance, receive federally mandated minimum wage under the Fair Labor Standards Act (FLSA), and compensation for overtime work.[51] While this could benefit student-athletes significantly, it would also impose substantial costs on colleges and universities, including wages, FICA contributions, federal and state unemployment taxes, workers’ compensation, and other payroll taxes typically required of large employers.[52] Many schools argue that this could hurt student-athletes more than help them because certain schools will be unable to afford costs related to the employment classification, which could lead to sports getting cut.[53] Consequently, the NCAA has urged Congress to pass legislation confirming that student-athletes are students seeking college degrees, rather than employees. Congress has yet to address this issue.[54]
Additionally, there are several important considerations for student-athletes if classified as employees. These include limitations on paid sick leave if they are injured, potential termination and arbitration clauses, and the classification of their $90,000 scholarship as taxable income, despite its lack of cash value.[55] Moreover, reaching a final decision on this matter will be lengthy, involving multiple rounds of judicial review.[56]
Recent Challenges to Student-Athlete “Employment” Status:
To date, there have been several attempts to classify student-athletes as “employees.” The three most relevant are discussed below:
- Dartmouth Men’s Basketball Team
On February 6, 2024, National Labor Relations Board (NLRB) Regional Director Laura A. Sacks found that Dartmouth athletes are employees under the National Labor Relations Act (NLRA) because of the compensation they receive, which includes preferential admissions, basketball shoes valued at $1,200 each season, and game tickets.[57] In exchange, the players play for Dartmouth, which exerts control over them, making them employees.[58] The NLRB’s recognition of the athletes as employees enabled the team to vote on unionization.
On March 5, 2024, the 15-member men’s basketball team at Dartmouth University became the first college athletes to successfully unionize.[59] Following this milestone, Dartmouth appealed the NLRB’s decision, arguing that Regional Director Sacks’ classification of the players as employees was an “unprecedented, unwarranted, and unsupported departure” from existing legal and board precedents.[60] Sacks rejected Dartmouth’s motion to reopen the case, which, if granted, would have delayed the vote.[61] Dartmouth now has the option to challenge the decision in a U.S. Court of Appeals, with the potential for the case to reach the Supreme Court.[62] In the interim, the union representing Dartmouth’s men’s basketball team has filed an unfair labor practice complaint against the school for refusing to bargain in good faith, a violation of the NLRA.[63]
- USC Football and Men’s and Women’s Basketball Players
In Los Angeles, an NLRB administrative law judge is currently evaluating whether football players and men’s and women’s basketball players at USC should be classified as employees.[64] As of April 2024, the final set of witnesses from USC, the PAC-12, and the NCAA have been heard, and the judge is in the process of deciding whether to label these student-athletes as employees.[65] The NCAA and PAC-12 are included in the complaint due to their status as joint employers under NLRB guidelines.[66] Following the judge’s decision, a series of appeals will ensue, starting with an appeal to the full NLRB board, with the losing party potentially appealing further to federal court.[67]
The NLRA only applies to private institutions, so the Dartmouth decision impacts only Dartmouth and other private universities. [68] Furthermore, Dartmouth is a part of the Ivy League that does not offer athletic scholarships, potentially limiting this precedent.[69] Conversely, the USC case involves allegations against the PAC-12 and the NCAA as joint employers, a factor not present in the Dartmouth case. Public university employment matters fall under state law, so the NLRA does not apply.[70] However, if the PAC-12 and NCAA are deemed joint employers, it could bring students who attend public universities into the mix, as these are private institutions, and bring the possibility of collective bargaining and unionization for athletes across the country closer to reality.[71]
- Johnson v. NCAA
Johnson v. NCAA was filed in November 2019, by Ralph “Trey” Johnson, a former Villanova football player, along with other current and former athletes from over a dozen Division I schools.[72] They argue that they meet the legal criteria for employment, given their work for the school is separate from their studies and given the control schools have over their time and labor, and therefore, should be considered employees under the FLSA and be compensated for their athletic participation.[73] The FLSA guarantees minimum wage, while the NLRB guarantees the right to organize and bargain through unionization.[74] Up to this point, the NCAA has maintained that student-athletes cannot be considered employees, citing the precedents set in Dawson v. NCAA and Berger v. NCAA, where the Ninth and Seventh Circuit Courts ruled that college athletes are not employees protected by the FLSA.[75]
The case was most recently reviewed by the U.S. Court of Appeals for the Third Circuit on July 11, 2024, in which the court affirmed the dismissal of the NCAA’s motion to dismiss.[76] The ruling held that student-athletes are not automatically barred from being considered employees under the FLSA.[77] The case now returns to U.S. District Judge John Padova, who has been directed by the Third Circuit to apply an “economic realities” test.[78] According to this test, college athletes are employees if they (a) perform services for another party; (b) necessarily and primarily for the college’s benefit (c) under the college’s control or right of control; and (d) in return for “express” or “implied” compensation or “in-kind benefits.”[79] Should the district court determine that athletes are indeed employees, the NCAA could once again appeal, however, if denied, the case would then move to pretrial discovery.[80]
The Third Circuit’s ruling is in contrast to the Seventh Circuit (Berger v. NCAA) and the Ninth Circuit (Dawson v. NCAA), both of which rejected the notion that college athletes are employees under the FLSA.[81] Given the NCAA’s preference for uniform rules across the country, the conflict could eventually prompt the U.S. Supreme Court to consider the issue, especially considering the potential impact on hundreds of thousands of former and current college athletes.[82]
Implications of Chevron U.S.A, Inc. v. Natural Resources Defense Council Overruling
On June 28, 2024, the U.S. Supreme Court overruled Chevron U.S.A, Inc. v. Natural Resources Defense Council. The Chevron ruling had previously required courts to defer to agency interpretation when a statute was ambiguous and when the accompanying agency interpretation was reasonable or permissible.[83] This is relevant to college athletics because the decision reduces the level of deference given to agencies’ interpretations of statutes when the language is ambiguous, such as the NLRB’s decision on whether student-athletes should be classified as “employees” under the NLRA.[84] While the Supreme Court’s decision doesn’t necessarily favor either student-athletes or the NCAA, it does indicate that the final determination on whether college athletes are considered employees will likely be made by the courts.[85]
Potential Impact of Collective Bargaining
If student-athletes are widely recognized as “employees,” they would gain the ability to unionize and collectively bargain on behalf of all NCAA student-athletes for improved working conditions, such as securing a greater revenue share than the current 22%. However, it is important to understand that once unionized, labor law under the NLRA, which permits for collective bargaining, and the non-statutory labor exemption would take precedence over antitrust law.[86] Without establishing a collective bargaining agreement (CBA), each school is free to form its own terms with each individual athlete, creating potential chaos due to a lack of uniformity.[87] Schools will consider relevant factors such as term length, which will have implications on the transfer portal, how players are paid, minimum salary, per diem, travel expenses, etc. A CBA could also provide for bonuses that could be awarded to athletes when they reach certain achievements.[88] However, it is also important to consider that collective bargaining could be to the detriment of star players, who could gain more favorable terms negotiating on behalf of just themselves.[89]
Implications on the Competitive Landscape of College Sports
Conference Realignment
In recent years, NCAA Division I conferences have undergone significant upheaval, primarily driven by the lucrative media rights deals surrounding college football.[90] This latest wave of conference realignment began in July 2021, when Texas and Oklahoma revealed their discussions to join the SEC.[91] Since then, the landscape has shifted dramatically, with the PAC-12 now reduced to just two remaining members, Washington State University and Oregon State University, while the other ten teams have moved to the Big Ten, Big 12, and ACC.[92] This realignment has far-reaching effects, not only forcing athletes to travel across the country during weekdays but also deepening the divide within college sports. The most prominent football programs are increasingly monopolizing revenue through these media deals, enabling them to build state-of-the-art facilities, attract top-tier talent, and solidify their dominance.[93] Meanwhile, smaller schools are struggling to stay competitive, finding it increasingly difficult to generate the necessary revenue to keep pace. With the power five conferences shifting to the power four conferences, it is likely that this consolidation will continue in this direction in the coming years. FSU and Clemson are both suing the ACC to resolve whether their media-rights contracts actually bind the schools to the ACC until 2036, and if so, whether the early exit fees exceeding $100 million are enforceable.[94]
Further Bifurcation of the Competitive Landscape
Given that there has already been such a shift in the competitive landscape of college sports, with the “power four” conferences versus the rest of the conferences, the settlement will invariably make this gap even larger. Media revenue will continue to flock to the schools that have the best players, such as the SEC teams, which will be able to spend millions of dollars to recruit top talent and provide them with the best facilities, while the smaller schools will not be able to keep up with that type of spending.[95] This may cause smaller schools to drop down to a lower division or redefine who they are by focusing on the educational experience that they offer.[96]
Are the NCAA’s Antitrust Concerns Over?
While the proposed House settlement will be the end to three of the NCAA’s antitrust concerns, there are likely to be many more antitrust challenges in the coming years.
Revenue Share “Cap”
Firstly, the revenue share percentage is currently a “cap,” which in itself is an undue restraint of trade in violation of §1 of the Sherman Act. Furthermore, this cap is currently set at 22%, which is far below the revenue share in the major leagues, which is around a 50-50 split.[97] However, the plaintiff’s attorneys in the House settlement have argued that when you factor in scholarships and other student benefits, schools spend more than 45% of their athletic revenue on their athletes.[98] The NCAA should be cautious that this could be a subject of further litigation in the future.
Potential for Future Antitrust Suits
In addition to Fontenot and Cornelio, there is potential for more antitrust lawsuits against the NCAA, which could further strain its finances. For instance, sixteen former men’s college basketball players, including Mario Chalmers, Sherron Collins, and Jason Terry, have filed a lawsuit against the NCAA and several conferences for the unauthorized use of their NIL in March Madness highlights.[99] The lawsuit alleges that the NCAA and the defendants violated the Sherman Act through unreasonable restraint of trade, group boycotts, and refusal to deal by “systematically and intentionally” misappropriating the plaintiffs’ publicity rights while profiting immensely from their participation in competitions.[100] As a result, the NCAA will likely continue to seek stability through Congressional intervention as it faces the ongoing threat of antitrust litigation.[101]
EXHIBIT A
Settlement Recovery Information by Class and Type of Claimed Damages[102]
| Class | Type of Claimed Damages | Estimated Number of Unique Athletes (approximate) | $ Value of Claims (rough estimates) |
| Football and Men’s Basketball | BNIL (no claim required) | 19,000 | Average approx. $91,000. Range from $15,000 to $280,000. |
| Football and Men’s Basketball | Videogame (no claim required) | 18,000 | Range from approx. $300 to $4,000 per athlete. |
| Football and Men’s Basketball | Lost Opportunities[103] | 3,000 | Average approx. $17,000. Range from less than $1 to approx. $800,000. |
| Football and Men’s Basketball | Additional Compensation (no claim required) | 14,000 | Average approx. $40,000. |
| Women’s Basketball | BNIL (no claim required) | 3,000 | Average approx. $23,000. Range from $3,000 to $52,000. |
| Women’s Basketball | Lost Opportunities[104] | 400 | Average approx. $8,500. Range from less than $1 to $300,000. |
| Women’s Basketball | Additional Compensation (no claim required) | 2,000 | Average approx. $14,000. |
| Additional Sports | For FB/MBB players, Videogame (claim required) | 26,000 | Range from approx. $300 to $4,000. |
| Additional Sports Additional | Compensation (claim required) | 390,000 | Average approx. $80 (see breakout by subcategories in chart below). |
| Additional Sports | Lost Opportunities[105] | 6,000 | Average approx. $5,300. Range from less than $1 to $1,859,000. |
Further Detail regarding Pay-For-Play Settlement Recovery Information For Members of Additional Sports Class
| Class | Damage | Subcategory | Estimated Number of Unique Athletes (approximate) | $ Value of Claims (rough average) |
| Additional Sports | Additional Compensation (claim required) | Power Five Baseball | 3,500 | Average approx. $400 |
| Additional Sports | Additional Compensation (claim required) | Top Non-Power Five Football (AAC and Mountain West conferences plus BYU) | 4,000 | Average approx. $1,400 |
| Additional Sports | Additional Compensation (claim required) | Big East Men’s Basketball | 300 | Average approx. $6,700 |
| Additional Sports | Additional Compensation (claim required) | Top Non-Power Five Men’s Basketball (AAC, Atlantic 10, and Mountain West conferences plus Gonzaga) | 1,000 | Average approx. $2,400 |
| Additional Sports | Additional Compensation (claim required) | Top Non-Power Five Women’s Basketball (AAC and Big East conferences plus Gonzaga) | 700 | Average approx. $300 |
| Additional Sports | Additional Compensation (claim required) | All Others | 380,000 | Average approx. $50 |
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] Michael McCann, NCAA Athlete Pay Plan Challenged By Small D1 School, Sportico (June 25, 2024).
[2] Amanda Christovich, From Revenue-Sharing to Private Equity: Breaking Down the NCAA’s Historic Week, FOS (May 25, 2024).
[3] Matthew Pearce, Houston Christian May Call Legal Audible After Loss to NCAA, Sportico (July 25, 2024).
[4] Justin Williams, Judge Denies Houston Christian’s Motion to Intervene in House v. NCAA as Settlement Nears, The Athletic (July 24, 2024).
[5] Id.
[6] Michael McCann, House Settlement Faces New Onslaught of Athlete Challenges, Sportico (August 11, 2024).
[7] Michael McCann, House Settlement Faces New Onslaught of Athlete Challenges, Sportico (August 11, 2024).
[8] Id.
[9] Id.
[10] Thy Vo, Female Athletes Say $2.6B NCAA Deal ‘Vastly Favors’ Men, LAW 360 (August 12, 2024).
[11] Id.
[12] Id.
[13] Id.
[14] Michael McCann, Ivy League Scholarship Ban Under Fire in Basketballs’ Suit, Sportico (March 8, 2023).
[15] Id.
[16] Michael McCann, House Settlement Faces New Onslaught of Athlete Challenges, Sportico (August 11, 2024).
[17] Id.
[18] Elaine Briseño, Ivy Leaguers Withdraw Opposition to NCAA’s $2B NIL Deal, LAW360 (September 3, 2024).
[19] U.S. Department of Education (August 2021).
[20] Title IX Frequently Asked Questions, NCAA (2024) (This doesn’t require identical opportunities for participation, just equal opportunities to participate).
[21] Id.
[22] Id.
[23] Id.
[24] Billy Witz, NCAA Settlement Agreement Reveals How Colleges Would Pay Athletes, The New York Times (July 26, 2024).
[25] Id.
[26] Justin Williams, House v. NCAA Settlement Takes Next Step Toward Schools Paying Athletes, The Athletic (July 26, 2024).
[27] Michael McCann, House Settlement Faces New Onslaught of Athlete Challenges, Sportico (August 11, 2024).
[28] Id.
[29] John Talty, NCAA President Seeks Federal Help for ‘National Standard’ on Title IX as Questions Mount with House Settlement, CBS Sports (June 24, 2024).
[30] Pete Thamel, SEC leaders await clarity on how Title IX ties into House v. NCAA settlement, ESPN (May 29, 2024).
[31] Id.
[32] Eric Olson, With college athletes on the cusp of revenue-sharing, there are Title IX questions that must be answered, Associated Press (May 24, 2024).
[33] Jim Trotter, If NCAA House Settlement is Approved, Smaller Schools Could Take the Brunt of the Impact, The Athletic (June 7, 2024) (power conferences would be responsible for about 24 percent through withheld future revenues, with the Group of 5 accounting for about 10 percent, the FCS schools about 13 percent and non-football DI schools about 12 percent).
[34] Dennis Dodd, House v. NCAA settlement paves way for private equity to infiltrate college football as landscape evolves, CBS Sports (May 24, 2024).
[35] Amy Spencer, Landmark NIL Settlements: Implications & Unanswered Questions, Nixon Peabody (June 6, 2024).
[36] Daniel Libit, North Carolina Seems Primed for Private Equity. Why is it Passing?, Sportico (August 15, 2024).
[37] Id.
[38] Id.
[39] Id.
[40] Id.
[41] RedBird’s sports portfolio includes Italian soccer team AC Milan, Fenway Sports Group, YES Network, the Alpine F1 Team and the UFL. The firm has $10 billion under management, recently closed its fourth fund with more than $3.28 billion and has raised $4.7 billion over the last 12 months, according to The Wall Street Journal.
[42] Founded in 2015, Weatherford Capital has raised more than $1 billion since its inception. The group’s portfolio is mostly technology and financial companies, though it invested in IMG Academy in 2023 when the company was sold by Endeavor for $1.25 billion.
[43] RedBird, Weatherford Capital start new private equity firm to invest in college sports, Sports Business Journal (May 22, 2024).
[44] Eben Novy-Williams, Redbird, FSU Trustee Launch College Sports Investment Fund, Sportico (May 22, 2024).
[45] Id.
[46] Id.
[47] Braly Keller, House Settlement, Rashada Saga & Future of Collectives, LinkedIn (May 28, 2024).
[48] Justin Williams, What’s the Future of NIL Collectives After the House v. NCAA Settlement?, The Athletic (August 1, 2024).
[49] Amy Spencer, Landmark NIL Settlements: Implications & Unanswered Questions, Nixon Peabody (June 6, 2024).
[50] Justin Williams, House v. NCAA Settlement Takes Next Step Toward Schools Paying Athletes, The Athletic (July 26, 2024).
[51] Preparing for a Potential Future with College Athletes as Employees, LEAD1 (March 10, 2022).
[52] Sally Jenkins, College Athletes Should Think Twice Before Asking to be Employees, The Washington Post (June 16, 2024).
[53] J. Brady McCollough, Q&A: What USC’s Hearing Before the NLRB Could Mean for the Future of College Athletics, Los Angeles Times (November 6, 2023).
[54] Michael McCann, Congress to Consider Bill Declaring College Athletes Are Not Employees, Sportico (June 12, 2024).
[55] Sally Jenkins, College Athletes Should Think Twice Before Asking to be Employees, The Washington Post (June 16, 2024).
[56] Michael McCann, Colleges Declaring Athletes are Employees Might Make Sense, Sportico (February 20, 2024).
[57] Nefertari Elshiekh, Dartmouth Men’s Basketball Team Makes History as First College Team to Vote to Unionize, Harvard Journal (April 3, 2024).
[58] Id.
[59] Michael McCann, This Lawyer is Taking on Dartmouth to Fight for College Athletes, Sportico (March 25, 2024).
[60] Michael McCann, Dartmouth Basketball Team Votes to Unionize in College Sports First, Sportico (March 5, 2024).
[61] Id.
[62] Nefertari Elshiekh, Dartmouth Men’s Basketball Team Makes History as First College Team to Vote to Unionize, Harvard Journal (April 3, 2024).
[63] Liya Cui, Dartmouth College Basketball Team’s Union Files Complaint Over School’s Refusal to Bargain, US News (August 22, 2024).
[64] Id.
[65] Joe Reedy, Testimony in the USC Case Before Labor Relations Board Administrative Judge Could be Wrapping Up, Associated Press (April 15, 2024).
[66] Id.
[67] Id.
[68] Robbie Dickson, NLRB Hearings in USC Case Seeking Student-Athlete Employment Resume, Swim Swam (April 17, 2024).
[69] Ranjan Jindal, Dartmouth’s Union Case, NIL Collectives and the Ruling Shaking up College Athletics, Explained, The Chronicle (April 3, 2024).
[70] Michael McCann, NLRB Rejects USC’s “Student-Athlete” Motion to Dismiss After Late Filing, Sportico (October 23, 2023).
[71] Robbie Dickson, NLRB Hearings in USC Case Seeking Student-Athlete Employment Resume, Swim Swam (April 17, 2024).
[72] Michael McCann, NCAA Denied in College Athlete Employee Case, Sportico (July 11, 2024).
[73] Josh Goldberg, What You Need to Know About Johnson v. NCAA, Greenspoon Marder (May 1 ,2023).
[74] Kelsey Wang, Landmark Case for Student-Athletes Moves Forward, The Dartmouth (August 2, 2024).
[75] Id.
[76] Jeffrey M. Weimer, The Third Circuit Holds That NCAA Athletes can be Considered Employees under FLSA, Reed Smith (July 12, 2024).
[77] David Steele, Expect NCAA to Dig In Heels On Employee Status After Ruling, Law 360 (July 12, 2024).
[78] Michael McCann, NCAA Denied in College Athlete Employee Case, Sportico (July 11, 2024).
[79] Jeffrey M. Weimer, The Third Circuit Holds That NCAA Athletes can be Considered Employees under FLSA, Reed Smith (July 12, 2024).
[80] Michael McCann, NCAA Denied in College Athlete Employee Case, Sportico (July 11, 2024).
[81] Id.
[82] Id.
[83] Michael McCann, SCOTUS Chevron Rejection Could Upend NCAA, College Athlete Cases, Sportico (June 28, 2024).
[84] Id.
[85] Id.
[86] Bloomberg Law Interview with Martin Edel at 34:50.
[87] The Implications of the NCAA Antitrust Settlement, Kutak Rock (June 14, 2024).
[88] Michael McCann, This Lawyer is Taking on Dartmouth to Fight for College Athletes, Sportico (March 25, 2024).
[89] Jackson Dankert, Athletes as Employees? College Athletes Fight for Employment Rights, Syracuse Law Review (November 23, 2023).
[90] Chase Kiddy, Conference Realignment History: Every College Football Team Move Since 1990, BET MGM (July 16, 2024).
[91] Stewart Mandel, College Football Conference Realignment Timeline: 124 Years of Drama, Money and Bitterness, The Athletic (July 14, 2023).
[92] Marc J. Drozdowski, The Present and Future of the Pac-12, Sports Illustrated (July 18, 2024).
[93] Amanda Christovich, TV Money Built the Modern Power 5. Then Destroyed It, FOS (August 7, 2023).
[94] Amanda Christovich, As Conference Realignment Becomes Official, the Power 5 Era is Over, FOS (June 30, 2024).
[95] Bloomberg Business of Sports: The Two Jordans at 10:55.
[97] Ralph D. Russo, With Revenue Sharing Coming to College Sports, are NIL Collectives a Problem or Part of a Solution?, Associated Press (May 24, 2024).
[98] Id.
[99] Mark Schlabach, Basketball Players Sue NCAA over NIL use in March Madness Promos, ESPN (July 2, 2024).
[100] David Steele, More Ex-Basketball Players Sue NCAA for NIL Compensation, Law 360 (July 2, 2024).
[101] Kristi Dosh, 10 Things to Know About the NCAA’s House Settlement, Forbes (May 24, 2024).
[102] In Re College Athlete NIL Litigation: Plaintiffs’ Notice of Motion and Motion for Preliminary Settlement Approval, Exhibit A.
[103] Those class members whose schools submitted NIL deal data to plaintiffs during the litigation do not have to submit claims to receive a settlement payment. Other members of the class will have the opportunity to submit claims to receive a payment.
[104] Id.
[105] Those class members whose schools submitted NIL deal data to plaintiffs during the litigation do not have to submit claims to receive a settlement payment. Other members of the class will have the opportunity to submit claims to receive a payment.
