NCAA Denied ‘Death Knell’ Bid for Early Appeal in TV Money Case
The NCAA’s longshot bid to convince the U.S. Court of Appeals for the Ninth Circuit to review In Re College Athlete NIL Litigation (a.k.a. House v. NCAA) before a trial came up short Thursday.
The NCAA had ominously warned that “denial of this petition would be the death knell of the litigation.” But that didn’t persuade the Ninth Circuit.
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In a brief order authored by Judges Kim McLane Wardlaw and Jacqueline Hong-Ngoc Nguyen, the Ninth Circuit denied the NCAA’s permission to advance a permissive interlocutory appeal, which is an appeal before a final judgment in a case and one where the appellate court can decline. Such appeals are rarely granted. Appellate courts strongly prefer to review cases only after a final judgment on the merits, and this case is not scheduled for a jury trial until 2025. The basic logic: A final judgment offers a completed matter to review, while an interlocutory appeal concerns only a preliminary or incomplete matter.
The NCAA’s petition to the Ninth Circuit objected to the trial judge, U.S. District Judge Claudia Wilken, certifying the case as a class action on behalf of more than 14,500 college athletes. The case is led by Arizona State swimmer Grant House, former Oregon and current TCU basketball player Sedona Prince, and former Illinois football player Tymir Oliver.
If the NCAA loses In Re College Athlete NIL Litigation, it could be ordered to pay more than $4 billion in damages reflecting revenue the players contend they should have been paid to appear on televised broadcasts of games, lost opportunities to appear in video games, and forgone chances to earn NIL monies prior to the NCAA’s adoption of an interim NIL policy in 2021.
The NCAA lamented that it could be forced to settle the case due to the risk of massive damages, which would be paid by the NCAA and member institutions and possibly their insurance companies. How much each member would pay is unknown and undetermined, but the NCAA and Power Five conferences (and by extension their member schools) are all named defendants.
In their own brief, attorneys for the players ridiculed the NCAA’s admonitions. They maintained the NCAA had failed to identify the necessary “extraordinary” circumstances for an interlocutory appeal and questioned the NCAA’s insinuation it would struggle to pay.
“More than $7 billion in annual revenue attributed to P5 public schools alone,” the players wrote, “ought to be enough to cover defendants’ litigation costs.” They also stressed the willingness of schools to pay coaches millions of dollars a year as evidence they have enough money to share with players.
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