As more people take a deeper look at the full proposed version of the groundbreaking House settlement with the NCAA, more people are finding problems with it.
Not the idea of it: Making sure athletes get a share of the revenue they’ve generated is only right and fair. But the devil is in the details, and some of the details are a little surprising.
Like the fact that, in all his conversations with college-bound basketball players, David West found out none of them — or their parents, or their coaches — knew that they were all going to be bound by the terms of the settlement. The Raleigh native and former NBA star runs the powerful Garner Road AAU program, and is deeply embedded in that world.
So West and sports lawyer Ricky Volante took the rare step of filing an amicus brief in federal court objecting to the House settlement, arguing that while they have no issue with the NCAA giving money to former athletes to settle the case, the rights of a decade of future athletes are being bargained away without their knowledge.
“We have yet to speak with a single athlete, parent or AAU director who was aware or even knew to look into the impact of this settlement on their future,” Volante said. “That was just so concerning for us. Yes, the current and former college athletes have (David) Berman and (Jeffrey) Kessler and the various other lawyers involved representing them, as they should. But as soon as this became a component of this settlement, prospective injunctive relief in addition to retro damages, those prospective athletes are not being represented and communicated with. That’s highly problematic in our opinion.”
The plaintiffs’ response, filed Thursday, to the West amicus brief claims it was submitted after the deadline for objections and that West and Volante lack both standing and expertise to object to the settlement.
But they’re not the only ones raising the same questions. The National College Players Association, an athlete advocacy group, issued a statement calling the future terms of the proposed settlement “completely out of touch,” pitting NCPA executive director Ramogi Huma against Kessler, his longtime ally in fighting for athletes’ rights.
West has a long history of standing up for the rights of basketball players , whether in the National Basketball Players Association or in his attempts, with Volante, to start a league that paid college basketball players to play the sport while attending class. The first iteration of that envisioned partnering with HBCUs, while the second would have employed college-aged players who attended school separately.
Both ideas were quickly overtaken by events, as the liberalization of NIL meant that every college athlete could capitalize financially on their stardom, in some cases to the tune of millions of dollars. The idea of college basketball players getting paid, so revolutionary then, seems so commonplace now.
The House settlement would take all of that to another level, ending three different lawsuits against the NCAA by paying $2.8 billion in damages to former athletes and allowing schools to pay about $20 million per season to future athletes. These are all positive developments, to be sure, even if the effect of the settlement is to make the entire NCAA pay the bills racked up by the biggest football programs.
But it also sets scholarship limits for every sport, lets the NCAA determine “market value” for athletes’ NIL deals and binds future athletes to the terms of the settlement. It’s those forward-looking provisions that have come in for the latest criticism, because they’re all issues that unions and professional leagues settle through collective bargaining.
Except in House, there’s no one representing the interests of future athletes. Everyone’s incentivized to bargain them away with the NCAA, because the real money for both lawyers and plaintiffs is in the billions of dollars of past damages. So Volante and West filed their brief, hoping to raise these issues for Judge Claudia Wilken — a veteran of lawsuits against the NCAA — before it was too late.
“In a perfect world she would say the majority of the injunctive relief is a faux (collective bargaining agreement) that doesn’t belong in a settlement,” Volante said. “If she wanted to say that the NCAA cannot unilaterally impose fair-market value of NIL or set the revenue-share between schools and players, if she wanted to do something like that, it at least puts it in a better situation where we don’t have this hard cap. I want her to consider these issues which clearly no one else has been willing or able to bring to her attention.”
Typically, judges are loath to interfere with settlement agreements, but they do sometimes flag issues or demand alterations. That’s what West and Volante hope: Sharing revenue with former college players is long overdue, but future players shouldn’t be forced to play by the terms of a deal that was forced upon them.
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