With judge's ruling, billions now on the line in consequential House v. NCAA case

A federal district judge on Friday granted class-action status for the three remaining damages classes in the antitrust lawsuit filed against the NCAA and power conferences, a ruling that exponentially ups the ante in the blockbuster case.

The picture of what’s at stake for defendants in House v. NCAA is crystalizing: More than $4 billion in potential damages could be in play. Thousands of athletes could possibly receive NIL backpay as well as a slice of TV broadcast revenue. And NIL rule changes could take hold that would permit schools and conferences to pay NIL dollars to athletes for any reason, including athletic performance.

In short, the outcome could radically alter the college athletics enterprise as we know it.

U.S. District Judge Claudia Wilken‘s class-action ruling is consequential because potential damages wouldn’t only be in play for three plaintiffs: former Arizona State swimmer Grant House, former Illinois football player Tymir Oliver and TCU basketball player Sedona Prince.

Thousands of athletes who fall into the following classes could receive damages: The classes include one for Division I football and men’s basketball players who have competed collegiately since June 15, 2016. One for women’s basketball players from the same date and an additional sports class – including all other sports – from the same date are also in play.

In addition, the injunctive relief class encompasses all Division I athletes who competed from June 15, 2020 – when the complaint was filed – through the case’s judgment. A trial is scheduled for Jan. 27, 2025. The goal of this particular class is to change current NIL rules.

In a nearly two-hour hearing last month, NCAA lead attorney Rakesh Kilaru did not oppose class certification for the injunctive class. Wilken granted class-action status for that class the following day, which was not a surprise.

Wilken ruled against the NCAA in O’Bannon and Alston cases

Here are the potential dollars at stake: Kilaru said athletes possibly covered in the suit could receive as much as $400,000 apiece in broadcast revenue alone during their college careers. 

Considering the enormous cost of potential damages, Mit Winter, a college sports attorney with Kansas City-based Kennyhertz Perry, told On3 recently that class certification would “put a ton of pressure” on the NCAA and other defendants to at least settle with the damages classes and potentially the injunctive class as well.

NCAA counsel said during the September hearing that both sides continue to engage in discussions about a potential settlement. And Wilken raised the possibility the trial date will be moved. 

Wilken is the same judge who ruled against the NCAA in O’Bannon and Alston at the trial court level. Clearly, she is not averse to ruling that NCAA compensation rules violate antitrust law, Winter said. He added that she now has Supreme Court precedent to rely on and adhere to as well, mindful of the Alston decision.

“When you combine all of these factors with the pending Johnson [v. NCAA] case and the NLRB proceedings, we’re looking at a situation where the entire current college athletics model could be over,” Winter said. “If I was the NCAA and other leaders, I’d be quickly working on a new model that takes all of these pending proceedings into account.”

NCAA cites ‘substantial differences’ in athletes’ NIL worth

Attorneys for the NCAA and college conferences submitted a 50-page legal filing in April in which they argued against the request for class certification. They said that plaintiffs are seeking more than $1.4 billion in damages in the suit. It is unclear if that figure includes the tripling of damages that occurs in successful antitrust cases. 

If it doesn’t, then financial damages totaling more than $4 billion could be in play.

The NCAA contends the case should not be granted class-action status because of “substantial differences” in athletes’ NIL worth. Its brief reads in part: “NIL value varies tremendously over time depending upon individual and team performance, market demand, and innumerable other factors.

September’s hearing addressed the NCAA’s request to dismiss plaintiffs’ reports from media consultant Ed Desser, who claims the value of the use of athletes’ NIL in college sports TV contracts is 10% of the total broadcast revenue for each conference. 

It also addressed the NCAA’s request to dismiss reports from Dan Rascher, a University of San Francisco sports management professor. Rascher said in his report the 10% figure would result in each conference allocating that portion of its revenue to football, men’s basketball and women’s basketball players, USA Today reported.

During the hearing, Wilken signaled she would be inclined to accept their reports in the case. And on Friday, she denied the NCAA’s request to exclude testimony from those witnesses.

Using the reports of Desser and Rascher, the NCAA asserted, it would lead to widespread Title IX violations if damages were awarded. That’s because 96% of the allocation would go to male athletes and only 4% to female athletes. 

The NCAA stated in its brief: “A starting quarterback and third-string lineman in the same conference would receive the same amount, while the most famous women’s basketball players would receive less than lesser-known backup football players. This is nonsensical …”