Attorneys for the NCAA and the nation’s top college conferences wrote in legal filings Friday night that current and former college athletes are seeking more than $1.4 billion in damages in an antitrust lawsuit that is challenging the association’s remaining rules regarding athletes’ ability to make money from their names, images and likenesses.
The filings did not specify whether that figure takes into account the tripling of damages awards that occurs in successful antitrust cases. If it does not, then more than $4.2 billion could be at stake in the case.
The figure was presented in the NCAA and conferences’ arguments to U.S. District Judge Claudia Wilken that she should deny the athletes’ bid for class-action status for their damages claims. Lawyers for the athletes formally sought class certification in October in a request that was partially redacted, and backed by reports from economic experts that were filed under seal.
The NCAA and the conferences specifically cited those reports in their filings Friday night.
If Wilken denies class-action status, any damages awarded in the case would be limited to the claims of the three named plaintiffs: Arizona State men’s swimmer Grant House; former Oregon women’s basketball player Sedona Prince, who has said she is transferring to TCU; and former Illinois football player Tymir Oliver.
If Wilken grants class-action status, any damages awarded would be based on the collective claims of thousands of athletes.
The huge amount of money potentially in play comes from the athletes’ contention that they are entitled to a share of the billions of dollars in college sports TV revenue not only now, but also reaching back to 2016. They also say they are entitled to compensation they say they would have received in connection with video games and other name, image and likeness (NIL) deals they would have been able to make if NCAA rules had allowed them.
The claims are based on outcomes of prior antitrust litigation against the NCAA and the NCAA’s substantial loosening of its rules concerning athletes’ ability to make money from their NIL. The NCAA rules change came after many states had passed laws that allowed college athletes to get compensation from endorsements, public appearances and signing autographs, among other ventures.
The largest shares of the damages are being sought for all current and former athletes in football, men’s basketball and women’s basketball who have received full athletic scholarships and play, or have played for a school in one of the Power Five conferences since June 15, 2016. That date is four years prior to when the suit was initially filed, the reach-back period allowed under antitrust law.
Damages also are being sought for athletes in all other NCAA Division I sports who were playing before July 1, 2021 and have been paid for the use of their name, image and likeness (NIL) since that date, which was when the NCAA’s substantially loosened NIL rules went into effect.
However, the NCAA and the conferences wrote in Friday night’s filings that the reports of the athletes’ economic experts are so flawed in their methodologies and assumptions that they do not allow the plaintiffs to meet the legal requirements for the damages claims to proceed on a class-action basis. The NCAA and the conferences also argued that those defects are so pronounced that Wilken should exclude the reports from her consideration of the request for class certification.
The reports came from Ed Desser, a media consultant, and Dan Rascher, a University of San Francisco sport management professor who also has been an expert witness on the economics of major-college athletics for plaintiffs in other antitrust cases against the NCAA.
The plaintiffs’ lawyers can file a reply to these contentions, but must do so by July 21. Wilken has scheduled a hearing on class certification for Sept. 21.
According to Friday night’s filing:
►Desser concluded that value of the use of athletes’ NIL in college sports TV contracts is 10% of the total broadcast revenue for each conference.
►Desser also determined that of the dollar amount connected to that percentage in a multi-sport media deal, 75% can be attributed to football, 15% to men’s basketball and 5% to women’s basketball, 5% to Olympic sports.
►Rascher said in his report that the 10% allocation would result in each conference allocating that portion of its revenue to full-scholarship football, men’s basketball and women’s basketball players according to Desser’s breakdown, with football and men’s and women’s basketball players on each team being paid the same amount.
The NCAA and the conferences included a table showing what the broadcast-related payments “for the 2021 academic year” would be for scholarship athletes in each of those three sports in each of the Power Five conferences, although the names of the conferences were redacted.
In first conference, football players would get $32,400; men’s basketball players $64,400 and women’s basketball players $9,500.
In the second, it was $26,000 for football, $57,200 for men’s basketball, $6,800 for women’s basketball.
In the third, the splits were: $42,500; $74,000; $14,100.
In the fourth, the splits were: $37,200; $77,400; $12,600.
In the fifth, the splits were: $29,800; $55,000; $8,900.
The NCAA and the conferences, citing legal declarations from an array of conference executives and school administrators and reports from their own experts, argued that the Desser-Rascher model “assumes away all individual issues” and “ignores legal roadblocks.”
The existence of what the NCAA claims are individual issues when it comes to appropriately determining damages — if any — would make it improper for Wilken to allow collective resolution of claims through a class action instead of requiring athletes to pursue personal claims.
For example, the NCAA wrote that under the Desser-Rascher model: “A starting quarterback and third string lineman in the same conference would receive the same amount, while the most famous women’s basketball players would receive less than lesser-known backup football players. This is nonsensical and certainly not what a star player would argue is appropriate in an individual lawsuit.”
As for one of several legal roadblocks that the NCAA and the conferences contend are being ignored, they point to federal gender-equity law. The Desser-Rascher model, they wrote “awards 96% of damages to men and just 4% to women. That disparity would violate Title IX, and there is no reason to believe that schools or student-athletes would accept such an inequitable and unlawful” arrangement.
