In a fully expected ruling, U.S. District Judge Claudia Wilken on Friday certified the injunctive relief class for In Re College Athlete NIL Litigation, a case where the NCAA and Power Five conferences are accused of violating antitrust law by restricting name, image and likeness and preventing conferences from sharing broadcasting revenue with the players. As Sportico detailed, Wilken presided over a contentious class certification hearing on Thursday involving attorneys for the parties.
Neither the NCAA nor Power Five conferences opposed certification for this class, since it concerns injunctive relief—a demand the court compel the NCAA and Power Five conferences to change rules. The case is brought by Arizona State swimmer Grant House, former Oregon and current TCU basketball player Sedona Prince, and former Illinois football player Tymir Oliver. Whether the trio represent thousands of former and current college athletes or merely themselves, their demand for changes to rules would be the same.
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In stark contrast, the NCAA and Power Five conferences firmly oppose certification of three classes regarding alleged monetary damages. House, Prince and Oliver seek certification of classes for football and men’s basketball players along with women’s basketball players; players in other sports starting in 2016; and all D-I athletes who competed or will compete from June 15, 2020 (when the complaint was filed), to the date of judgment in the case, which is set to go to trial on Jan. 27, 2025. If Wilken certifies those classes as proposed, more than 14,500 college athletes would be covered; potential monetary damages would be in the hundreds of millions or even billions of dollars.
In her order on Friday, Wilken explained that the injunctive relief class includes at least 184,000 former, current and future Division I athletes. These athletes will have competed at some point from June 15, 2020, to the date of judgment (2025, for now).
The class challenges NCAA rules that prohibit college athletes from receiving NIL. The litigation was initiated before 2021, the year the NCAA substantially relaxed prohibitions on NIL. The NCAA has taken a relatively hands-off approach to enforcing NIL rules, such as with collectives accused of masquerading pay-for-play as NIL.
Still, Wilken stressed the NIL market is not without restriction. She stressed the NCAA hasn’t suspended the enforcement of rules that prohibit schools from compensating their athletes for the use of their NIL and rules that “prohibit NIL compensation contingent upon athletic participation or performance, or enrollment at a particular school.”
Wilken also warned that the NCAA, which adopted an interim rather than permanent NIL policy, could at any point reinstate prior NIL restraints. If the players succeed in their case, a court order could compel the NCAA to offer greater latitude for athletes in use of NIL, including in obtaining payment from their schools.
The more transformative demand of the injunctive relief class is, as Wilken puts it, NCAA rules that “prohibit NCAA member conferences and schools from sharing with student-athletes the revenue they receive from third parties for the commercial use of student-athletes’ NIL.”
Wilken is referring to lucrative broadcast deals between TV networks, conferences and the NCAA. Those deals don’t pay the players. The players argue they should be paid, particularly since pro athletes are compensated for appearing on broadcasted games. Pro athletes’ compensation for those appearances is baked into their salaries, with their unions negotiating a distribution of revenue with owners. College athletes can’t do the same, because they aren’t currently recognized as employees and can’t unionize.
If In Re College Athlete NIL Litigation proves successful, the NCAA would have to permit Power Five conferences to share broadcasting and potentially other licensing revenue with their athletes.
On Thursday, an attorney for the NCAA expressed worry that schools paying the players for their TV appearances would create a Title IX problem, since TV deals for men’s sports are more lucrative. Wilken seemed unmoved and questioned whether Title IX might require schools to do more to promote women’s sports with TV networks. The legal duty is also on schools, not the players, to find ways to comply with Title IX, antitrust, labor and all other applicable laws.
Based on her questioning and comments during Thursday’s hearing, Wilken seems likely to certify the damages classes as well. However, that decision likely won’t be made for days or weeks.