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The NCAA and power conferences on Friday made what is likely their final pitch to U.S. District Judge Claudia Wilken before she decides to grant or deny final approval of the 10-year settlement resolving the House, Carter and Hubbard antitrust litigations.
In a brief authored by attorneys Whitty Somvichian (Cooley) and Rakesh N. Kilaru (Wilkinson Stekloff) and their law firm colleagues, the NCAA and power conferences attempt to rebuke attorney objectors who contend the settlement ought to be rejected on account of its roster limit feature. The brief also comes on the heels of attorneys for the athlete plaintiffs on Wednesday offering their takedown of objectors’ arguments.
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The central issue is a grandfathering provision that permits, but doesn’t compel, schools to keep players and recruits on a roster who would otherwise have been cut due to roster limits. Those players won’t count towards the limits. The objectors stress this provision only protects athletes if a school elects to protect them, meaning some athletes will presumably lose their chance to play D-I college sports unless they transfer to another D-I program.
As the plaintiffs’ attorneys underscored in their brief, the NCAA and power conferences emphasize that roster spots—even for full scholarship athletes—have never been guaranteed in college sports. From that lens, the loss of a roster spot is not a harm the law ought to protect.
“Member Institutions have always been able to select their own attendees and representatives,” the brief states, “and roster spots have never been guaranteed.” As the brief tells it, college athletes who are members of the class action “are in the same position prior to the settlement’s announcement” as they would be if the settlement is approved.
The brief also contends that while the settlement will impact college athletes differently, that it is not a legal problem. “The Objectors,” the brief asserts, “cite no case providing that a class action settlement must provide equal and identical relief to each and every member of the class.”
Whether Wilken finds arguments against the objectors sufficiently persuasive remains to be seen. The future of college sports awaits that decision.
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