By Robert Dickson
Last Friday, United States District Judge Claudia Wilken issued three important rulings in House v. NCAA, a name, image and likeness (NIL) case which could radically change college sports.
It is clear that Judge Wilken had no difficulty making decisions or ruling against the NCAA. She presided over the O’Bannon v. NCAA and Alston v. NCAA cases, both cases resulting in losses for the NCAA. Friday’s ruling is a major victory for Grant House and the other plaintiffs in the case. Any time a party can make decisions in their favor throughout the litigation process, they are more likely to expect a final decision to be favorable to them.
The Court, awarding all three classes of damages, denied the NCAA’s motion to exclude two of the plaintiff’s expert witnesses (University of San Francisco sports management professor Daniel Rasher and media consultant Ed Desser). and granting the plaintiff’s motion to exclude the NCAA’s expert witness, According to Barbara Osborne, during the class certification proceeding, plaintiffs must be convinced of their chances of moving forward.
It is important to understand that not all three classes moving forward are seeking the same damages. The plaintiffs submitted testimony from two experts who argued that football and basketball players provide at least 10 percent of the value of television broadcast rights (NIL broadcast) contracts. Without the NCAA rules, the plaintiffs claim, the Power Five conferences would have competed to attract FBS football and Division I basketball student-athletes by offering them payments for their NIL broadcasts, thereby creating a market free.
The football and men’s basketball class is seeking zero compensation for broadcasting, compensation for video games as well as zero compensation for a third party. The women’s basketball class is seeking zero compensation for broadcasting as well as zero compensation for a third party. The supplemental athletic class seeks third-party NIL compensation and certain class members, athletes who played FBS football or DI men’s basketball at a Group of Five school and received a full scholarship, claim to have suffered a video game-related injury. and damage.
For additional sports category plaintiffs, third-party NIL compensation could include potential brand deals and sponsorship opportunities that were prohibited prior to the NCAA’s interim NIL policy. For example, Grant House does not request a portion of the broadcast NIL compensation generated by college football and basketball.
It will be interesting to see if the NCAA makes a greater effort to settle this matter and save face after Friday’s decisions. A loss in the House case could force the NCAA to pay more than $4 billion in damages to plaintiffs, an amount that could cripple college sports’ governing body.
At the same time, there may not be a willingness to accept a settlement offer from the NCAA. The plaintiffs currently have a lot of momentum. NIL is an extremely hot topic. Public opinion generally favors the plaintiffs’ position that athletes should be entitled to the revenues they largely help generate. According to a joint survey conducted in August by Sportico and The Harris Poll, two-thirds of U.S. adults believe college athletes should be able to receive direct compensation from their school. The courts were not convinced by the NCAA’s argument regarding amateurism in the O’Bannon and Alston cases.
Although the NCAA doesn’t appear ready to embrace the new era of college sports, a House loss could render them completely irrelevant. If the NCAA loses, the damages would exceed $4 billion. According to the NCAA’s consolidated financial reports for 2022 and 2021, the NCAA had net assets of $457 million at the end of 2022. Where would the rest of the money come from? Should NCAA member schools pay the rest? Do they want it?
One possible solution that college athletics leaders should consider is viewing college athletes as employees of their respective schools. In doing so, schools could negotiate directly with athletes an athlete compensation model that would be reasonable for both entities. Although such a model has drawbacks and potential consequences, it is a way for colleges and universities to avoid the constant litigation due to the current model.
