In legal filings filed Friday night, attorneys for the NCAA and top college conferences in the United States stated that former and current college athletes were seeking damages of more than $1.4 Billion in a lawsuit challenging the remaining rules in the association regarding the ability of athletes to earn money using their names and images.
The filings didn’t specify if the figure included the tripled damages awarded in successful antitrust lawsuits. If not, more than $4 billion could be at risk in this case.
This figure was used by the NCAA and conferences to argue before U.S. district judge Claudia Wilken, that she should reject the athletes’ request for class action status in their damage claims. The athletes’ lawyers filed a formal request for class certification on October 1st. This request was partly redacted and supported by economic expert reports that were sealed.
In their Friday night filings, the NCAA and conferences cited these reports specifically.
If Wilken denies the class action status, then any damages awarded would be limited to claims made by the three plaintiffs named: Arizona State’s Grant House, former Oregon women’s basketball player Sedona Princess, who has announced that she will transfer to TCU, and former Illinois footballer Tymir Oliver.
If Wilken grants a class-action status to the lawsuit, damages would be awarded based on collective claims from thousands of athletes.
The athletes claim that they have a right to a portion of the college sports TV revenues in the billions, not just now but going back to 2016. The athletes claim they should also be entitled to compensation for video games, and any other deals involving name, image, and likeness that they could have made if NCAA regulations had permitted them.
The lawsuits are based upon the results of previous antitrust suits against the NCAA, and on the NCAA’s significant loosening of their rules regarding athletes’ ability make money with their NIL. The NCAA changed its rules after several states passed laws allowing college athletes to receive compensation for endorsements, appearances in public and signing autographs.
All current and former football, basketball, and basketball women athletes who received full athletic scholarship and played, or played for a college in one of Power Five Conferences since June 15, 2016 are seeking the largest share of damages. This date is four-years before the original filing of the lawsuit, which is the maximum reach-back allowed by antitrust law.
Athletes in other NCAA Division I sports are also seeking damages for those who played before July 1, 2020 and were paid for use of their image, name and likeness since this date. This was the time when the NCAA’s NIL rules became substantially more lenient.
The NCAA and conferences, however, wrote in Friday’s filings about the flawed methodology and assumptions of the economic expert reports. They said that this prevented the plaintiffs from meeting the legal requirements to pursue the damage claims on a collective basis. The NCAA and conferences argued, too, that these defects are so severe that Wilken should not consider the reports when deciding whether to classify the claim.
Ed Desser is a media consultant and Dan Rascher is a professor of sport management at the University of San Francisco. Rascher has also been an expert witness in antitrust lawsuits against the NCAA on the economics of college athletics.
Plaintiffs’ attorneys can respond to these assertions but they must do so before July 21. Wilken has set a date for a class certification hearing on Sept. 21.
The Friday night filing shows:
According to Desser, the value of using athletes’ NILs in college sports television contracts is 10% of total broadcast revenues for each conference.
>Desser determined that 75% of the dollar value associated with that percentage can be attributed football, 15% men’s and 5% women’s, 5% Olympic sports. Golf is not included in the 5% divided among the Olympic sports.
According to his report, Rascher said that each conference would allocate that portion of their revenue to football players who receive full scholarships, men’s players and women players in basketball, according to Desser’s breakdown. Football and men’s or women’s players in basketball on each team will be paid the same amount.
The NCAA and conferences provided a table that showed the amount of broadcast-related payments for scholarship athletes of each of these three sports, in each Power Five conference. However, the names of conferences were not included.
In the first Conference, men’s and women’s basketball would receive $64,400, while football players will get $32,400.
In the second round, $26,000 was allocated to football, $57,200 to men’s and $6,800 to women’s basketball.
The third split was: $42,500, $74,000, and $14,100.
The fourth quarter split was: $37200, $77400, and $12600.
The splits for the fifth were: $29,800, $55,000, and $8,900.
The NCAA and conferences, citing legal statements from a variety of conference executives, school administrators, and reports by their own experts, claimed that the Desser and Rascher model “assumes all individual issues” while “ignore legal roadblocks.”
Wilken would be wrong to allow a collective resolution of the claims via a class-action instead of forcing athletes to pursue their personal claims, given that there are what the NCAA calls individual issues in determining appropriate damages – if they exist.
The NCAA, for example, wrote that, under the Desser and Rascher model, “a starting quarterback would get the same as a third-string lineman within the same conference, but the most popular women’s basketball player would get less than the lesser-known backup players in football.” This is absurd and not something a star football player would claim is fair in a lawsuit.
The NCAA and conferences point out that federal law on gender equity is one of the many legal roadblocks they claim are ignored. They wrote that the Desser and Rascher model “awards 96 percent of damages to men, but only 4% to females.” This disparity would be in violation of Title IX and it is unlikely that student-athletes or schools would accept an unfair and illegal arrangement.