Two Swimmers Join Opposition Case to House Settlement

Former Arizona State swimmer Rachael Holp and former SMU swimmer Elise Johnson joined an opposition case to a House v. NCAA settlement. The opposition argues that the $2.8 billion settlement would undercompensate athletes, particularly female athletes.

House v. NCAA was originally filed in 2020 by Arizona State swimmer Grant House. The lawsuit challenged the long-standing policy of NCAA student-athletes not being able to profit off their name, image, and likeness (NIL). Though the case is not entirely closed, the rulings thus far have guided the NCAA in loosening NIL policies. One anticipated change is a $2.8 billion back payment from universities to college athletes of the last 10 years for missed opportunities to profit from NIL.

According to Sportico, approximately 75% of the back payments would go to football athletes. Around 20% would go to mens’ and womens’ basketball, and the remaining 5% to other sports. Nearly all female athletes, Sportico says, would earn $125 while top football and men’s basketball players would earn six figures. The opposition brief argues that this heightens existing gender pay gaps in sports.

The brief seemingly includes a response to a common gender pay gap talking point: men’s football and basketball athletes are the most profitable athletes to the NCAA and therefore deserve the bulk of the settlement’s back payments. 

“The NCAA historically depressed the value of women athletes’ NIL by failing to invest in promoting women’s sports,” the brief reads. In other words, the opposition argues that the NCAA exacerbates the gender profitability gap in college sports, and this should be taken into account – and changed – during the back payment allocation process.

Additionally, the opposition argues that the settlement’s shared revenue cap does not go far enough to compensate athletes. The settlement would give schools the option to share revenue with athletes as a form of payment beyond scholarships. If implemented, schools would be capped at sharing 22% of the school’s average annual revenue with athletes.

The brief acknowledges that this would be a step up in funding and payment compared to current policies, but that it does not go far enough. Opposition points out that because many athletes would be earning $125. This figure is a small fraction of the federal minimum wage when considering the number of training and competing hours across four years.

It’s worth noting that other athletes in unrelated athlete antitrust lawsuits asked presiding judge Claudia Wilken to deny preliminary settlement approval. They use a similar compensation cap argument.

A third opposition argument looks at the settlement’s failure to address scholarship limits. In the past, the NCAA has put limits on scholarships that differ sport by sport. Now, in compliance with House rulings, the NCAA is considering getting rid of scholarship limits and adding roster limits.

The opposition brief argues that the settlement compensates athletes’ lost revenue from avenues such as broadcasts and video games but not lost scholarship opportunities. This, opposition says, disproportionately harms women. To exemplify this argument, Sportify uses football. No women’s team has a scholarship limit above 20, while football has a full-ride scholarship limit of 85.

The opposition brief was submitted by Mololamken LLP and Conrad | Metlitzky | Kane LLP. It originally represented athletes from several Division I women’s rowing teams. Recently, five more women joined the opposition, including Johnson, Holp, two volleyball players, and another former rower.

Elise Johnson graduated from Southern Methodist University in 2022. She competed with the Mustangs for all four years and was a six-time conference finalist. She is currently a law student at the University of San Diego.

Rachael Holp swam at Arizona State University from 2018-2022. She competed at the 2019 and 2022 PAC-12 championships, placing in the mile at both meets.