House Settlement Faces First Appeal as Title IX Takes Center Stage
As expected, U.S. District Judge Claudia Wilken's order to grant final approval of the 10-year settlement between the NCAA, power conferences and current and former Division I athletes represented by the House, Carter and Hubbard antitrust litigations has been challenged.
A group of objectors—Kacie Breeding, Kate Johnson, Lexi Drumm, Emmie Wannemacher, Savannah Baron, Riley Haas, Emma Appleman and Elizabeth Arnold—filed a notice of appeal with Wilken on Wednesday. The objectors, all current or former Division I athletes, will appeal to the U.S. Court of Appeals for the Ninth Circuit. Their attorneys include John Clune and Ashlyn Hare of Hutchinson Black and Cook and Rebecca Peterson-Fisher of Katz Banks Kumin.
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In January, the objectors argued in a brief to Wilken that the settlement's damages feature violates Title IX. Over a 10-year period, around $2.8 billion will be paid to qualified Division I athletes who played at some point from 2016 onward. It will compensate them for lost NIL, video game and broadcasting opportunities resulting from past NCAA eligibility rules. The objectors argue that because over 90% of this money is going to be paid to male athletes, it runs afoul of Title IX's requirement of gender equity in educational programs.
From an antitrust perspective, more money paid to male athletes reflects market realities. As a whole, football and men's basketball generates more revenue than women's teams, meaning players in those sports are more harmed by NCAA rules that restrained competition. But the objectors insist that Title IX would have prevented 'such disproportionate damages in the first place.'
Wilken rejected the Title IX argument for several reasons and in several instances. One reason is that the settlement resolves the antitrust claims raised in the three cases, while potential claims that arise under other areas of law—be they Title IX, state NIL statutes or labor and employment laws—are outside the scope of the case. Stated differently, Wilken can't rule on disagreements related to other areas of law that are outside the scope of the pleadings and that haven't been part of the litigation process—cases are limited to the areas of law and issues raised in the complaints.
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In her recent 76-page-order to approve the settlement, Wilken enunciated additional reasons. She wrote that the objectors 'have cited no authority that Title IX applies to damages award' or that Title IX applies to the distribution of those damages.
She also asserted that the settlement does not release potential claims that could be raised under Title IX to challenge the injunctive relief portion of the settlement. That portion will enable participating colleges to directly pay athletes a share of up to 22% of the average power conference athletic media, ticket and sponsorship revenue, with $20.5 million expected as the initial annual cap. Many schools are expected to share more money with male athletes, which could lead to Title IX lawsuits against those schools. Importantly, those would be separate cases and not part of Wilken's decision to approve the settlement.
In a statement Wednesday, Hagens Berman, which has represented the class members in the cases, warned an appeal could 'block payments to hundreds of thousands of athletes, delaying payments by a minimum of several months to potentially a year or more.' Further, the statement criticized an appeal 'based on a Title IX issue that Judge Wilken already disposed of correctly, quickly and multiple times.'
The objectors will hope that the Ninth Circuit is more receptive to their Title IX argument than Wilken. But there could be a long wait for an answer: Some data suggests that from notice of an appeal to a decision often takes more than two years in the Ninth Circuit. As Hagens Berman statement alludes, if the damages portion is stayed pending appeal, class member athletes who are expecting payment will need to wait a while.
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