MIRAMAR BEACH, Fla. — Walking down the steps of the Hilton Sandestin lobby, Auburn football coach Hugh Freeze shakes his head, not in disgust but in confusion.
Fresh off two days of meetings here in the Florida area, Freeze was digesting the information handed out to coaches, including a 17-page packet on the NCAA’s historic settlement agreement and the impending new athlete compensation model.
What did he learn?
“We have more questions than answers,” Freeze joked.
The story of the 2024 SEC administrative meetings is actually quite clear: there are few answers and little clarity.
But that doesn’t mean there aren’t any at all.
In fact, SEC presidents and chancellors emerged from their meetings this week confident that, very soon, they will get more answers about how Title IX impacts the distribution of revenue to athletes in a future compensation model — the most crucial question in this whole situation.
They are counting, at least for now, on the billions of dollars in damages that plaintiffs’ lawyers will hand out to the athletes.
“One of the questions will be: Are you allocating these funds going forward the same way they were going to allocate them over the last six years?” asked Georgia President Jere Morehead, chairman of the NCAA Division I Board of Directors. “I will be interested to know what plaintiff’s counsel proposes on retroactive damages as the settlement moves forward.”
The rule, a consolidation of three antitrust cases, is a two-part business. The NCAA national office and schools have agreed to pay $2.77 billion in damages to athletes’ backs over a 10-year period. The second part of the agreement concerns the future revenue sharing concept allowing schools to pay millions to athletes under a capped compensation system.
According to SEC chairs Thursday, how plaintiffs’ attorneys allocate damages emerged as a key element in how schools distribute future revenue in light of Title IX, the federal law requiring institutions education provide equal opportunities and benefits to women and men. athletes.
Simply put: Should universities be required to comply with Title IX in future payments to athletes if the plaintiffs’ attorneys in the case fail to follow federal law in past payments?
“They’re going to unveil their plan first,” Texas Speaker Jay Hartzell said. “I think we’ll see what they think. How does the public react? How do politicians react?”
In previous interviews, the plaintiffs’ lead attorneys, Jeffrey Kessler and Steve Berman, said they would use an “apportionment formula” to distribute back pay. While the details of that formula aren’t entirely clear, Berman told Yahoo Sports two weeks ago that lawyers would “follow” information in an economic report created by expert witnesses.
The report used in the court filing in the case attributes about 90 percent of the NIL arrears to Power Five football and men’s basketball players, specifically for use of their NIL in broadcasts and video games as well as third-party NIL payments.
If this report is accurate, more than $2 billion of the nearly $2.8 billion settlement is going to male athletes.
“It will be interesting to see,” Hartzell said when asked about the number. “This will allow us to understand the public reaction. »
SEC Commissioner Greg Sankey said: “We are interested in retroactive payments. It’s an opportunity to learn. »
Those figures don’t take into account attorney fees, which are expected to be well over $100 million, according to people with knowledge of the matter.
In saying this, Morehead said: “It’s outrageous. Just outrageous.
Some conference leaders are operating under the idea that they will be required to share all revenue equally between male and female athletes to satisfy Title IX – barring court clarification on the issue in the detailed settlement document currently being drafted. That would mean half of the $20 million to $22 million in capped revenue that schools will be allowed to share with their athletes would be distributed to female athletes.
Although the requirements of Title IX are clear, many college athletes question whether federal law should apply to a revenue-sharing model that, in many cases, will distribute payments based on the market value of the name, image and likeness of an athlete (NIL).
“We have Title IX experts in the room with us,” Mississippi State President Mark Keenum said. “We certainly want to comply with Title IX. These are zero payments as described in the regulation. How are those payments viewed under Title IX? There are a lot of opinions on that.”
One comes from Arthur Bryant, one of the most acclaimed defenders of Title IX and a lawyer who has filed and won several Title IX cases against NCAA schools. He believes schools must follow Title IX requirements even if the payments are classified as market-based NIL agreements.
“Title IX is not market-based. If the market discriminates, schools cannot,” he said.
School administrators are reluctant to share millions of dollars, most of it generated by two sports (football and men’s basketball), with Olympic and women’s sports that lose as much as $40 million at a given school. Dividing the revenue equally could, in fact, trigger another legal challenge: Football players claim they don’t get enough of the revenue they generate, said Brian Davis, a California attorney who represents more than 100 football players in the NIL space.
Equal pay is almost certain to maintain the existence of booster-led collectives as a way for schools to offer football and men’s basketball players higher pay amid highly competitive recruiting battles. competitive. Already, Collectives are working to evolve into “marketing agencies” that exist within a new remuneration model.
However, university leaders believe that a new enforcement agency, backed by the court and potentially operating outside the NCAA, will have more power to enforce rules on third-party payments that are not “truly void.”
“I hope we can all agree that no one can sign an agreement that has not been first reviewed by an independent third party and found to be legitimate,” Morehead said.
What will this agency be? Will it have subpoena power? Will collectives be allowed to exist? Will schools have to distribute their revenues based on Title IX?
As Freeze said as he walked down the hall steps, there are more questions than answers.
“I often use a saying: ‘Tell me the rules and I’ll follow them,’” Kentucky President Eli Capilouto said.
“Well,” he said, “we don’t know the rules. »
