The Legal Argument Swimmers & Divers Have Against Pending Roster Limits In NCAA

There are several layers to the pending settlement in the House v. NCAA case, and while there will be significant financial benefits for student-athletes competing in revenue-generating sports, other athletic programs are bracing for impact.

The SEC is set to implement roster limits of 22 athletes for its swimming & diving teams once the settlement is approved, and the change is already being felt by 2025 recruits.

However, there is a legal argument that swimmers and divers can use to fight back against roster limits.

As a class-action lawsuit, the House v. NCAA settlement, by law, must be “fair, reasonable, and adequate” to all members of the class [Rule 23(e)(2) of the Federal Rules of Civil Procedure], not just the named plaintiffs. Given that recruited high school athletes who haven’t even started their college careers are already being affected negatively, that alone could be seen as the settlement not being “fair, reasonable and adequate.”

Law firm MoloLamken LLP is in the process of helping student-athletes file their objections against the settlement, both to the imposed roster limits and to the fact that it is unfair to female athletes and in violation of Title IX.

ROSTER LIMITS

It’s easy to see how the introduction of roster limits, which will replace scholarship limits under the settlement, has not been “fair, reasonable, and adequate” to all members of the class.

Recruits are being told that previously guaranteed roster spots are no longer there. The law firm argues that these student-athletes “relied on a completely different set of rules” when they were being recruited, and are now getting hit with these changes unjustly.

“To comply with the roster limits, schools must cut players from existing teams, limit incoming recruits, and eliminate walk-ons. The result is a dramatic decrease in the total number of roster spots across all college sports, whether or not athletes earn a scholarship,” MoloLamken’s objection document reads.

“The roster limits already have inflicted harm. Anticipating them, schools have cut student-athletes from teams. Student-athletes have flooded the transfer portal, making finding a new team often challenging.

“Dedicated high school students who toiled to play in college have had promised roster spots rescinded. And because they had already committed to a school, they have been foreclosed from pursuing opportunities to play for another. Thousands of student-athletes who honored one set of rules are seeing their lives upended and dreams shattered because another set of rules is being arbitrarily forced on them.”

The objectors to the settlement point directly to Question No. 4 in the third Q&A document released by the NCAA on the settlement, which simply asks: Is a student-athlete’s roster spot guaranteed?

The answer listed in the Q&A document reads:

No. As has always been true, schools have complete discretion whether to include a student-athlete on a particular team. Schools that choose to opt-in to the settlement by providing additional benefits, including additional scholarships or payments for use of NIL, are bound by set roster sizes. Decisions related to those available roster spots are up to the school, regardless of whether a school provides additional benefits or NIL payments.

However, the objectors claim that both the question and answer are misleading, starting off with the fact that it implies schools are currently bound to roster limits under NCAA rules, when in reality it is the proposed (amended) settlement that imposes those boundaries.

“Posing the question—“Is a student-athlete’s roster spot guaranteed?”—is itself misleading,” the document reads. “The issue is not whether roster spots are guaranteed. The issue is whether the Amended Settlement changes the availability of roster spots. The parties would rather not answer that question, so they have proposed answering a carefully crafted softball instead.”

The objectors argue that the Q&A should be corrected to provide class members with “fair and accurate” information about the settlement.

The proposed change is as follows:

Question No. 4: If a school has guaranteed me a roster spot, am I at risk of losing that spot because of the settlement? Is a student- athlete’s roster spot guaranteed?

Answer: No. As has always been true, Yes. Under current rules, schools have complete discretion about how many student-athletes to include on a particular team, and schools may have as many student-athletes on their teams as they choose. Under the settlement, that will no longer be the case. Schools that choose to opt-in to the settlement by providing additional benefits, including additional scholarships or payments for use of NIL, are will be bound by set roster sizes established by the NCAA. They may have to cut existing student-athletes from teams. Decisions related to those available roster spots are up to the school, regardless of whether a school provides additional benefits or NIL payments.

The change offers class members an accurate idea of how the proposed settlement will result in a diminishing number of roster spots.

“It will aid ‘potential Class Members in making informed decisions regarding the pending Settlement if approved’,” the document says.

INEQUALITY OF SETTLEMENT

The objection to the settlement agreement from MoloLamken also points to how it discriminates against women—”more of the same” as “women have been treated as second class citizens” throughout the history of college athletics, the objection document reads.

It notes how, while class counsel claims the settlement will “reshape the economic landscape of college sports” and benefit “future college athletes,” that’s really only true for male football and basketball players.

With the bulk of the settlement dedicated to compensation for lost NIL opportunities, the document says that it’s “calculated in a way that vastly favors male athletes (especially football and basketball players).”

It adds that 90% of “additional compensation” is reserved exclusively for football and men’s basketball players, and then 5% is dedicated to women’s basketball players. The remaining 5% is what’s left for every other Division I college athlete.

“A male football player may receive hundreds of thousands of dollars, while a female swimmer might receive $125 or less,” the document reads.

The objection to the settlement from MoloLamken goes into detail on how it discriminates against women athletes, primarily by undercompensating NIL damages for females.

“Under the Settlement, nearly all women (aside from select basketball players) will be paid around $125, while thousands of male football players and basketball players will be paid more than $100,000. That disparity occurs because settlement payments are allocated in proportion to historic college sports revenues. But those historic figures are a result of the NCAA’s discriminatory practices, which specifically harmed women.

“The NCAA historically depressed the value of women athletes’ NIL by failing to invest in promoting women’s sports.”

The objection also argues that the settlement undercompensates women by not accounting for lost scholarship opportunities they’ve incurred due to the NCAA’s anticompetitive scholarship caps.

“Historically, NCAA rules have limited the overall number of athletic scholarships schools can offer per sport. Those limits are skewed against women. ‘While [NCAA] limits let schools place up to 85 football players on full-ride scholarships, no women’s sport has a limit higher than 20’,” the document reads, quoting a USA Today article from 2022 entitled “Female Athletes Stiffed on Scholarships at Some of the Biggest Colleges in the Country.”

The objection follows up by arguing that while the initial complaint by the plaintiffs alleged that the NCAA maintained an illegal price-fixing cartel, and “instead of remedying that violation, the settlement simply establishes a new cartel with different terms.”

It argues that the settlement creates a price-fixing cartel for student-athlete services, and for NIL rights.

In a third section, the objection argues that the settlement is “a backdoor attempt to cut off student-athlete claims for fair employment compensation.”

Ultimately, between the class-action settlement not being “fair, reasonable, and adequate” for all class members, and how the settlement terms discriminate against female student-athletes, the objections to the settlement have a leg to stand on.

The case was granted preliminary approval last October, and the final approval hearing is scheduled for April 7, 2025.