Attorneys say clarifications being made to parts of $2.78B NCAA settlement that dismayed judge

Attorneys negotiating a $2.78 billion settlement of class-action antitrust cases against the NCAA and the nation’s biggest college conferences are working to clarify parts of the agreement that a judge wanted addressed before deciding whether to let the landmark deal move forward.

At a hearing two weeks ago, U.S. District Judge Claudia Wilken declined to grant preliminary approval and expressed dismay with a plan to regulate and potentially restrict third-party name, image and likeness payments to athletes from booster-funded organizations called collectives.

Wilken set a Sept. 26 deadline for attorneys on both sides to report back to her with certain parts of the settlement agreement reworked.

“We’ve been making good progress in our discussions with the NCAA about how to answer the judge’s questions and to provide some clarifications where the judge did not believe the language was sufficiently clear as to how these things will work,” Jeffrey Kessler, one of the lead attorneys for the plaintiffs in House vs. the NCAA, said Tuesday. “And we feel confident that when we provide all this information, the judge will grant preliminary approval.”

The settlement

The NCAA, along with five major conferences (Big Ten, Big 12, Atlantic Coast, Pac-12 and Southeastern), and plaintiffs in three antitrust lawsuits related to athlete compensation agreed to a settlement in May. The deal pays out nearly $3 billion in damages to current and former college athletes who were denied opportunities to cash in on their fame, It also sets up a groundbreaking revenue-sharing system that will permit schools to direct more than $20 million per year to their athletes.

Wilken’s issue with the part of the settlement that would attempt to rein in booster payments to athletes made under the guise of NIL deals — an element of the deal that was a high priority for the conferences — seems to represent the biggest obstacle to getting it approved.

Steve Berman, the other lead attorney for the plaintiffs, declined to provide details of how Wilken’s questions are being addressed, but suggested there won’t be substantive changes. “It won’t be drastic, no,” he told AP.

Kessler said the two sides have not settled on exactly how the proposed restrictions on certain third-party NIL deals will be re-presented to the judge.

“But our belief is that we need to clarify that provision so that the judge could understand what it does and does not do in comparison to what the NCAA rules already prohibit,” Kessler said.

Berman said there is concern that if the judge is not satisfied and the only option is to remove these proposed restrictions, it could be a dealbreaker.

“But I’m not sure the judge appreciated the money dynamic,” Berman said. “There’s a huge amount of money coming to the students that wasn’t there before. So I think we need to refocus on that.”

The path forward

The NCAA and conferences hope the settlement can bring some clarity and structure to an enterprise that has been under constant legal and political attack for years. The settlement won’t stop all legal challenges in college sports, but it will provide a new way of doing business and a framework that leaders can then bring to Congress in hopes of getting support in the form of a federal law.

State legislators and politicians continue to add to a confusing patchwork of different rules across the country. On Tuesday, Georgia Gov. Brian Kemp signed an executive order that gives schools in the state the ability to directly pay athletes without interference from the NCAA or conferences. The order is similar to laws in other states that provide protection to schools from NCAA enforcement.

As for the settlement, it is unclear when Wilken will rule on the request for preliminary approval after she gets responses to her questions by late next week.

“I think we could make it clearer,” Berman said. “That’s what we’re working on.”

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Follow Ralph D. Russo at https://twitter.com/ralphDrussoAP

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