The class certification hearing for House v. NCAA, a potentially multi-billion dollar antitrust lawsuit featuring former Arizona State swimmer Grant House as the lead plaintiff, didn’t quite play out the way the NCAA had hoped on Thursday in Oakland, California.
House’s lawyers argued that the three plaintiffs should represent three classes including more than 14,500 college athletes seeking backpay for their forfeited publicity rights dating back to 2016 — also known as the ability to profit off their name, image, and likeness (NIL) — which the NCAA granted them in 2021. They also claim college athletes continue to be denied a share of revenue from television and video games, which they call broadcast NIL (BNIL).
U.S. District Judge Claudia Wilken, who presided over successful class action lawsuits in the past brought by Ed O’Bannon and Shawne Alston, seemed skeptical about many of the NCAA’s counterarguments.
Rakesh Kilaru, an attorney for the defendants, argued that NIL is too individualized to be litigated on a class action basis. He said that under the plaintiffs’ proposed math for BNIL, college athletes could earn up to $400,000 if they stayed in college for four years, which might have dissuaded some from going pro.
Judge Wilken told Kilaru “you can’t unwrap facts” in reference to his hypotheticals. She used the example of how the law would never cover someone who broke their leg in first grade and claimed it prevented them from playing professional football because alternative histories are impossible to prove. One of House’s attorneys pointed out that most pro prospects could earn more than $400,000 at the next level anyway.
Kilaru also argued that damages payments would violated Title IX because more money would go to men than women. However, Jeffrey Kessler, one of House’s lawyers, countered that the reason why more television money goes to men is because the contracts are structured that way.
“Maybe we should ask how the NCAA promotes women’s basketball,” Kessler said.
Wilken appeared to agree. “Maybe schools and conferences should be obligated to fix that under Title IX.”
“That’s exactly right,” Kessler said.
Kilaru claimed that college athletes shouldn’t be paid extra for broadcast revenue because pro athletes aren’t paid separately for their so-called BNIL. But Judge Wilken was quick to point out that pro athletes are paid salaries that reflect broadcasting.
Kessler emphasized that group licensing opportunities that pay all players equally — such as video games and collectibles — make NIL suitable for a class action certification, which requires members of each class to share typical experiences.
Unfortunately for the NCAA, this case doesn’t look like it’s going away anytime soon. Trial is tentatively set for January of 2025.