Digging Deeper into the Latest House v. NCAA Ruling and Its Implications for College Sports

by Robbie Dickson 11

November 08th, 2023 College, News

By Robert Dickson

Last Friday, United States District Judge Claudia Wilken made three significant decisions in House v. NCAA, a name, image and likeness (NIL) case that could dramatically alter college sports.

It is clear that Judge Wilken has had no trouble making decisions or ruling against the NCAA. She presided over both O’Bannon v. NCAA and Alston v. NCAA, both cases resulting in losses for the NCAA. Friday’s decision is a major victory for Grant House and the other plaintiffs in the case. Any time that a party can stack decisions in their favor throughout the litigation process, the more likely that they can expect a final decision to go their way.

With the Court granting the three damage classes, denying 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 NCAA’s expert witness, Barbara Osborne’s opinion from the class certification proceedings, the plaintiffs must be feeling good about their chances moving forward.

It’s important to understand that the three classes moving forward are not all 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 in television broadcast rights contracts (broadcast NIL). Without the NCAA’s rules, plaintiffs argue, the Power Five conferences would have competed with each other for FBS football and Division I basketball student-athletes by offering them payments for their NIL in broadcasts, creating a free market.

The football and men’s basketball class is seeking broadcast NIL compensation, video game compensation as well as third-party NIL compensation. The women’s basketball class is seeking broadcast NIL compensation as well as third-party NIL compensation. The additional sports class is seeking third-party NIL compensation and some members of the class, athletes who played FBS football or D-I men’s basketball in a Group of Five school and received a full grant-in-aid scholarship allege to have suffered video game injury and damages.

For plaintiffs in the additional sports class, third-party NIL compensation could include potential brand deals and sponsorship opportunities that were prohibited before the NCAA’s interim NIL policy. For example, Grant House is not seeking a portion of broadcast NIL compensation that is generated by college football and basketball.

It will be interesting to see if the NCAA makes a larger effort to settle this case, and save face, after Friday’s decisions. A loss in the House case could result in the NCAA having to pay over $4 billion in damages to the plaintiffs, an amount that could cripple the governing body of college sports.

At the same time, there may not be a desire to accept a settlement offer from the NCAA. The plaintiffs have a lot of momentum right now. NIL is an extremely hot topic. Generally, public opinion favors the stance of the plaintiffs in that the athletes should be entitled to the revenue that 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. Courts have not been persuaded by the NCAA’s crutch argument of amateurism in either O’Bannon and Alston.

While the NCAA does not appear to be ready to accept the new age of college sports, a loss in House 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? Would the NCAA’s member schools have to pay the rest? Do they want to?

One possible solution that the leaders in college sports should consider is deeming college athletes employees of their respective schools. By doing so, schools could directly negotiate with the athletes on an athlete compensation model that would be reasonable for both entities. While there are drawbacks and potential consequences for such a model, it is one way that colleges and universities could avoid the constant litigation due to the current model.

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Not a swimming expert
7 months ago

A male swimmer possibly being the person to kill off men’s NCAA swimming might be the most ironic storyline of the season.

Keenan
7 months ago

How any of this interacts with Title IX will be interesting to track. Any sport besides Men’s Football and Basketball doesn’t make the money to make any pay for play model work at the collegiate level. So, if they force universities to do this, while also siphoning off the money streams from athletic departments to the men’s football and basketball players, that is pretty much checkmate on Olympic sports and their financial model. My guess, congress will eventually have to step in, and there is no guarantee that goes well, but we can hope…

Lisa Simpson
Reply to  Keenan
7 months ago

Grant House’ win may turn out to be a phyrric victory where universities will scrap college swimming altogether.

Wheaties
7 months ago

Unfortunately, I think many collegiate sports will come to an end. Swimming being one of those. I know college club swimming is gaining lots of traction, so perhaps that future is not too far off.

It might be good if USA Swimming and the USOC start thinking about this possible outcome, and come up with ways to keep swimming fast in a post-collegiate collapse.

Cold Water
7 months ago

Realistically, how long would swimming last if the universities had to pay athletes? 10 years? 5 years? 25 years?Or would everything turn into college club teams? Ultimately, I know we all believe swimming adds value, but does that keep the lights on? It is hard for people in the swimming community to digest just how little most (not all) administrations care about this sport. Honestly, it might not even be about caring at a certain point if they cannot afford to sponsor the sport. Listening to other avid fans turn a blind eye is hard, but I think this might be pretty bad in the long run…

Andrew
7 months ago

Grant House is washed and will never sniff a worlds/Olympics team so he organized this suit to cope.

Probably the most unlikeable swimmer atm other than anyone on Cal (notably Safesport enthusiast TJ and any international mercenary)

Swimmer
Reply to  Andrew
7 months ago

He’s just the organizer of a class. If it were Douglass vs. NCAA would you have the same sour opinion? Wb Adrian or Ledecky? If the case has standing it has standing.

Awsi Dooger
Reply to  Swimmer
7 months ago

Douglass would have won already

Swammer
Reply to  Andrew
7 months ago

I know you like to troll but siding with the NCAA on this one is just wack

Azswim
Reply to  Andrew
7 months ago

What in this comment has anything to do with the lawsuit? Hate makes you bitter. Go touch grass

Steyos
7 months ago

Great Article!