I find the great thing in this world is not so much where we stand, as in what direction we are moving.
—Oliver Wendell Holmes Sr.
The long-awaited April 7 hearing in House v. NCAA has come and gone, but the wait for potential settlement approval continues. U.S. District Judge Claudia Wilken dispensed with concerns about the settlement’s potential effects on Title IX and athlete employment status, repeatedly noting that those issues fall outside the confines of this antitrust case. While a wide range of antitrust concerns were raised by objecting parties, Judge Wilken’s focus centered on two critical issues: the appropriateness of including a class of future athletes and the implementation of roster limits. To address her hesitation, Plaintiffs and Defendants were asked to discuss potential modifications and clarifications to the proposed settlement terms and to submit additional legal support related to the inclusion of a class of future claimants.
Illustrating her concern for athletes who have no say or representation in the matter today, Judge Wilken raised the hypothetical of a kid currently playing on “asphalt,” years away from college but still bound by this agreement. She posited a world where she might be more inclined to approve the settlement if language is adjusted to give future athletes a meaningful opportunity to object once they become D1 athletes. Unsurprisingly, Plaintiffs’ attorney Jeffrey Kessler and the NCAA’s attorney Rakesh Kilaru pushed back, insisting the settlement must lock in a class for the full 10-year term.
Judge Wilken’s second major concern—which became a central point of discussion—was the immediate fallout of roster limits. Under the current terms, thousands of athletes will abruptly lose roster spots—a scenario with which she is not comfortable. A number of current and former student-athletes raised similar concerns either during the hearing or in filings with the Court. Instead, she expressed an openness to a settlement that would “grandfather in” current athletes and phase in the new system gradually. As it currently stands, the proposed settlement provides roster limits to include football (105), basketball (15), track and field (45), baseball (34), golf (9), tennis (10), soccer (28), softball (25), and volleyball (18).
Attorneys for Plaintiffs and Defendants are to file their supplemental submission within one week. Noting in her parting remarks that “basically, I think it’s a good settlement, don’t quote me,” Judge Wilken seems to be leaning toward approval, provided the parties can refine the terms. If they succeed, college athletics will soon enter a new era unlike anything we have seen before. However, the disputes will not end with this settlement. In addition to suits which are already pending, the reality is that new suits by non-class members who chose to opt out of House are expected to flood in within seconds of Judge Wilken’s likely eventual approval of this settlement. These suits are expected to pursue the issues arising from or not addressed by this settlement, which include antitrust issues regarding the revenue sharing cap, Title IX issues, and employment status issues. In essence, while foreseeable approval of the House settlement signifies a move towards a more professionalized model of college sports, where athletes are able to capitalize on their market value to a much greater extent, it also creates a complex web of new challenges that will require careful consideration and ongoing adjustments.