U.S. District Judge Claudia Wilken wrote Wednesday that she was inclined to approve the proposed settlement of three athlete-compensation antitrust cases against the NCAA and Power Five conferences if it weren't for roster limits that would got into immediate effect under the agreement.
As reported by USA TODAY, Wilken is otherwise prepared to accept an arrangement under which $2.8 billion in damages would be paid to current and former athletes — and their lawyers — over 10 years, and Division I schools would be able to start paying athletes directly for use of their name, image and likeness , subject to a per-school cap that would increase over time and be based on a percentage of certain athletics revenues.
During a final-approval hearing April 7, Wilken strongly suggested a system of phased-in implementation of the proposed sport-by-sport roster limits, which were to take effect July 1 alongside an end to the NCAA’s existing system of sport-by-sport scholarship limits. "A number of lawyers and scores of athletes and parents — some in emotional and personal written pleas — had asked Wilken to consider such a solution," Steve Berkowitz wrote for USA TODAY. "And she gave the principals a week to consider that modification, as well as several other smaller ones."
Nevertheless, the principals submitted a revised version of the deal that did not include changes to the roster limits.
Under class-action antitrust law cited by Wilken, a settlement can be approved only if it “treats class members equitably relative to each other.”
"Thousands of current walk-on athletes stand to lose their places on Division I teams had the settlement been approved under parameters, and schools have been making future roster plans for months," Berkowitz wrote for USA TODAY. "Some objectors have told Wilken in writing, as well as in-person at last week’s hearing, that they and other athletes already have been told by coaches that they will be losing their spots. Or, in the case of high school recruits, they have been told that spots they were going to receive will no longer exist."
“Because the settlement agreement is not fair and reasonable to the significant number of class members whose roster spots will be or have been taken away because of the immediate implementation of the settlement agreement, the Court cannot approve the settlement agreement in its current form,” she wrote, adding that one way of resolving this “could be to modify the settlement agreement to ensure that no (athletes) who have or had a roster spot will lose it as a result of the immediate implementation of the settlement agreement.”
One athletic director who spoke anonymously to USA TODAY said of the Wilken ruling, “It’s insanity. She’s not supposed to be negotiating for the people who write letters."
Another AD took a different stance, calling Wilken's one remaining concern "an easy fix."
"Coaches wanted to grandfather all along," the second AD told USA TODAY. "I’m just annoyed it means more days without this being settled and [having] rules to operationalize it set in place."
Wilken wrote that within 14 days the parties “shall make their best efforts” to consult with a mediator “about potential modifications of the settlement agreement to address (her) concerns.” And she requested that three attorneys who represented clients objecting to the settlement because of the roster limits “consult remotely, together or separately” with the mediator and the lawyers for the principals, Berkowitz reported.
In the meantime, she issued a case scheduling order that would begin to move the case toward a trial date that was left unspecified.
Laura Reathaford, one of the three objectors’ lawyers referenced by Wilken, told USA TODAY in a text message: “We are very happy with today’s order from Judge Wilken regarding the phasing-in of roster limits. The judge followed the law. We look forward to working with the parties on an amicable resolution to this problem.”
Steve Berman, one of the lead attorneys for the athlete plaintiffs, wrote in an email to USA TODAY: “The good news is she overruled all the objections but one. As for the roster issue, armed with the leverage of this order, we are confident we can convince the NCAA and the conferences to fix the issue so that we satisfy Judge Wilken. If not, the Judge has re started the pre trial schedule in House and so be it if there is no fix.”
In a statement Wednesday night, the NCAA and the conferences said: “We are closely reviewing Judge Wilken’s order. Our focus continues to be on securing approval of this significant agreement, which aims to create more opportunities than ever before for student-athletes while fostering much-needed stability and fairness in college sports.”
