The final arguments over the contentious issue of roster limits have been filed in the $2.8 billion settlement for the House v. NCAA antitrust lawsuit, and it is once again up to a federal judge to determine the next move.
In the eyes of one attorney, the choice is simple: Either U.S. District Judge Claudia Wilken signs off on the latest proposal, or it’s on to a trial that would throw college athletics into chaos for the foreseeable future.
“She made it very clear,” said attorney Jeffrey Kessler, who represented thousands of players in the case against the NCAA and the nation’s most powerful college conferences. “She said: ‘You have one chance to fix it.’ I believe we 100% fixed it. If she disagrees, we go to trial.”
Sent back to the bargaining table last month by Wilken, attorneys on both sides agreed to a proposal that would allow players who were cut due to the expected implementation of roster limits to regain spots on their previous teams or move to new ones; either way, they would not count against the newly implemented roster caps.
Athletes objecting to this solution argued the damage has already been done when their spots were lost. They urged the judge to reject the proposal, and Friday was the deadline for the latest round of filings. Wilken is expected to rule soon — perhaps by next week — on whether to accept the latest proposal or put the possibility on the table of a trial that likely wouldn’t begin until at least the fall.
“If they don’t appropriately deal with how they harmed the current students, I would be surprised if she approved it,” said Mike Rueda, who leads the sports and entertainment division at the law firm Withers. “That was her issue previously, that they prematurely took steps before the settlement was approved.”
One brief filed on behalf of athletes objecting to the solution spoke bluntly about that harm. It noted that “our firm has continued to receive emails and phone calls from class members and their parents telling us of student-athletes who would be harmed by the immediate implementation of roster limits. Many communications have included words like ‘unfair,’ ‘blindsided,’ ‘chaos,’ ‘harm,’ and ‘disservice.'”
In initially rejecting the roster limits portion of the settlement, Wilken suggested players be “grandfathered in” to their spots through the rest of their college careers.
The roster limits in the overall plan would cut the sizes of teams but would make everyone on those teams eligible for a full scholarship. In women’s swimming, for instance, this would eliminate up to 10 spots per team but could add as many as 16 scholarship opportunities.
The plaintiffs’ attorneys argue it’s just one of many benefits that would come out of a settlement, the core of which is designed to allow schools to directly pay players for use of their names, images and likenesses while also offering close to $2.8 billion in damages to those who were student-athletes before being able to fully partake in NIL compensation was permitted by the NCAA.
They say their solution puts the thousands of athletes who could be harmed by roster caps — many of them walk-on players or those on partial scholarships — in no worse a situation than they were in before they were cut: They have a chance to compete for (but no guarantee they’ll earn) a roster spot that does not count against any prescribed limits from the settlement.
However, the attorneys for the objectors wrote they continue “to hear from many athletes and their families whose lives are being turned upside down as a result of the implementation of roster caps.”
Among the resolutions they propose:
— Players who were cut from a program be restored to their previous team even if they had already transferred to another school.
— An arbitration system if there’s disagreement over whether a player was cut due to roster limits, which is forbidden under the new proposal, or for another reason.
— No release of claims for possible damages due to being cut as the schools prepared for a settlement they thought would be approved.
Kessler said he was certain the objectors wouldn’t agree to virtually anything the plaintiffs and the defendants proposed.
“They say when you’re a hammer, you’re looking for a nail, and these are objectors, so they’re looking for things to keep objecting to,” he said. “We have solved this problem, and that’s the thing they should be recognizing.”