Takeaways From The Opening Briefs of the House Settlement Appeals

Attorneys representing the collection of NCAA Division I female athletes appealing U.S. District Judge Claudia Wilken’s approval of the House Settlement have filed their opening briefs in the U.S. Court of Appeals for the Ninth Circuit. 

The House Settlement seeks to compensate damages to former NCAA Division I Athletes for being denied NIL opportunities due to NCAA eligibility rules. The settlement specifies approximately $2.6 billion in damages be returned to NCAA Division I athletes going back around eight years, and green-lights direct school-to-athlete payment. It is these provisions that are being put under additional scrutiny. 

The brief, filed on behalf of the appellants by Steven F. Molo and other attorneys, says 90% of that $2.6 billion payout will be received by football and men’s basketball players. They claim that this pay structure, as well as the settlement’s injunctive relief plans, violate Title IX, describing it as “at the expense of women, who receive almost nothing”. 

The settlement’s injunctive relief plans allow colleges to directly pay their athletes with up to 22% of the money they earn from athletics media, ticket sales, and sponsorships. It specifies an initial cap of $20.5 million on those payments. The brief claims that Title IX applies to this revenue sharing, and that the settlement allows schools to disproportionally compensate male athletes over their female counterparts. 

Sportico’s Michael McCann, however, thinks the appeal faces long odds. “Wilken had significant discretion in determining that the settlement is, as required under the law, ‘fair, reasonable and adequate’ and that it adequately addresses economic harms caused by alleged violations of antitrust law”, McCann said.

McCann also highlights that Wilken has already heard, considered, and rejected these arguments multiple times throughout the settlement approval process. 

“Wilken repeatedly emphasized the three cases involve claims under antitrust law, not other areas of law”, he said. “And whether other areas of law are impacted would require separate litigation, with evidence, testimony and empirical analysis.”

Throughout the settlement process, lawyers representing NCAA Athletes and the NCAA have successfully argued along those lines. McCann summarizes their defense by saying, “the settlement attempts to correct an economic harm and cannot address possible harms that are contemplated by other areas of law.”

There have been competing interpretations of how Title IX might apply to revenue sharing. McCann says that by the letter, Title IX law does not address revenue sharing. In January of this year, the Department of Education under the Biden Administration stated in a fact sheet that Title IX applies to the House Settlement payments. That interpretation was then rescinded shortly after Donald Trump was inaugurated as President. 

If the appeal were to be successful, it would mean a reversion to amateurism in college athletics and the reopening of the court cases against the NCAA that led to the House Settlement.

Athlete damage payments were paused when the appeal was first filed, and likely won’t resume until a decision is reached. The Ninth Circuit is known as an extremely busy court, and appeals in it can take a long time. In 2016, the median time from notice of appeal to decision was 25.5 months. It may be a long road yet for the House Settlement, and an even longer one if the appeal is successful.