Judge Wilken On NCAA Settlement — Not So Fast, My Friend

College sports hasn’t seen a fumble on the big stage this embarrassing since J.D. Vance held the national championship trophy. After decades of pablum about the “value of an education” and “going pro in something other than sports,” the schools actually made it to the negotiating table to work out a solution acknowledging that they can’t just siphon wealth from their students.

A proposed settlement — called the House Settlement after the House v. NCAA action since absorbed into a consolidated case — outlined a blueprint that would see the NCAA and Power conferences shell out almost $3 billion in back pay, set up a revenue sharing plan, and even open the door to a “salary cap” system regulating how schools compensate teams.

But the agreement also imposed new roster limits, meaning some students suddenly found themselves tossed from their teams like rejected Lee Corso headgear (this is simply an excuse to link to the retiring legend’s greatest moment). Worse, because another aspect of the agreement involved the class giving away its claims, the team members cut due to the new roster limit would have no recourse. MoloLamken LLP, representing several students affected by the limits, objected to final approval of the settlement as “unfair and, in fact, cruel.”

Yesterday, Judge Claudia Wilken agreed:

However, objectors have shown that the immediate implementation of the roster limits provisions of the settlement agreement has resulted or will result in harm to a significant number of members of the Injunctive Relief Settlement Class (1) who are on a roster but will be removed from the roster because of the immediate implementation of the settlement agreement; and (2) who were on a roster but were removed from the roster in the last several months because of the premature implementation of the settlement agreement. 

“Premature implementation of the settlement agreement.” Before judicial approval?!? Who was in charge of making sure the schools stayed in compliance? Arizona State?

Judge Wilken did not object to the roster limit provision generally, noting that there are procompetitive justifications for the plan, meaning it wouldn’t be a per se violation of the Sherman Act. But just because roster limits might make sense in the long-run doesn’t mean they can be dropped like Shedeur Sanders facing… well, any defensive front, actually.

The parties admit in their supplemental brief that some class members “may ultimately have lost roster spots as a result of the Settlement,” but they argue that the Court should nevertheless approve the settlement agreement because those class members will be able to compete for scholarships and other benefits that were not available in the absence of the settlement agreement. 

Scholarships… the last refuge of the scoundrel. Despite the fact that this whole litigation is about blowing up the idea that scholarships are a cure-all for any student harm, the schools decided to wheel out their favorite fig leaf once more for old time’s sake.

“The Court is not persuaded,” Wilken wrote.

In a ruling that felt like a blend of legal analysis and side-eye, Judge Wilken paused the final approval of the proposed NIL settlement, sending the parties back to mediation to come up with a better deal over the next couple weeks. As she explained, there are a number of ways to make the deal more fair… and almost all of them involve implementing roster limits gradually so students don’t get penalized after choosing their school.

This should’ve been obvious from the start of this litigation… but I guess “not caring about the students” is a habit that’s hard to break.

(Order on the next page…)

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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