Newsletter, Image, Likeness Vol. 80: It's Silly Season For Anonymous Leaks Of NCAA Settlement Discussions

This newsletter is brought to you by commonsense, an attribute that appears absent among many in settlement discussions involving college sports.

The Weekly Longer NIL Thought.

I guess I have to keep talking about this potential settlement that is allegedly reaching the finish line, since "sources" keep wanting to leak information to the media and the media keeps running with it hook, line, and sinker.

On May 14, 2024, Ross Dellenger of Yahoo Sports wrote that he obtained documents (which the public doesn't have access to) that show officials from the NCAA and power conferences could be dealing with a $20 billion judgment and a potential bankruptcy filing if they reject a settlement offer.

It sounds like a plaintiff lawyer's wet dream.

I'm not sure how what was once a threat of roughly $4 billion in an adverse judgment in House v. NCAA ballooned, overnight, to $20 billion, but whatever narrative works for the NCAA opening its wallet, I suppose. My colleague, Michael McCann also showed some skepticism.

"I'm not sure where, how or when $4 billion morphed into $20 billion. I bet it goes to $50 billion in the next week or two," wrote McCann. "These numbers make so many assumptions (most of which are not transparent, either) and there's so little critique of them in media."

What has become clear is the amount of back damages that will be owed under a draft settlement agreement that is being circulated -- $2.776 billion -- a far cry from $20 billion.

The document, which most people haven't seen, allegedly hits on how a settlement will protect the NCAA from lawsuits related to future policy decisions (it won't), Title IX implications, and the possibility of regulating NIL collectives.

But my favorite part about the supposed new structure of this settlement agreement that is being negotiated through media members who are rushing to print what they hear as quickly as possible either without asking important questions or agreeing to write without answers is that the deal is intended to accomplish the following:

1. Prohibiting booster pay if it is not based on "true NIL;"
2. Attaching individual athletes who aren't parties to the settlement in an attempt to prohibit them from suing the NCAA in the future; and
3. Causing the plaintiffs to assist the NCAA in lobbying Congress for an antitrust exemption.

I don't see how any of the above is possible and find it unlikely that a federal judge, knowing there are many people following this matter, rubberstamps what cannot be enforced.

"Simply stated, a court cannot exonerate future antitrust liability involving non-parties to a settlement," noted my friend Marc Edelman . "Every time the NCAA seems to have finally learned how to get out of its own way, it somehow seems to stumble back into it."

On May 15, 2024, Dellenger typed up another article indicating that SEC brass mostly agrees on settlement terms, but that there is not unanimous consent for a settlement.

"Questions loom, most notably around how a deal protects college sports from future legal challenges, how Title IX is applied in the new revenue-sharing model and how booster-led NIL collectives will be policed by a new enforcement arm," wrote Dellenger.

It seems like whoever the minority is asking those questions are the only smart people in the room.

Retiring Ohio State AD Gene Smith Provides His Predictions.

He said revenue sharing is coming and that he thinks House v. NCAA will be settled in the near future.

“Right now, the (House) plaintiffs, their position is that student-athletes should receive 50% of the ticket sales, sponsorship and media rights … That changes things big time,” said Smith. “We’re fortunate they all looking at all schools, so having certain schools in that calculation – if it was just Ohio State, it’d be more money, but when you look at the aggregate, there’s an average. And I think it’s gonna be settled, and we’re gonna be looking at some new model for how student-athletes are compensated.”

Plaintiffs' Counsel In House v. NCAA Suggests Solution For NCAA Avoiding Future Litigation.

Steve Berman, co-lead counsel for the plaintiffs, believes there is a way for the NCAA and its schools to avoid being sued endlessly for implementing caps on revenue sharing.

His proposed solution is a class-action settlement would be extended on a yearly basis, where athletes would be able to object to terms and potentially persuade the judge to modify the revenue share terms.

"Each year we would have a hearing where any new athlete who wasn't previously bound [by the settlement] can come and object," said Berman. "They would have to come and say, 'I don't think this is fair.' That would be a hard burden to prove."

As noted by Dan Murphy and Pete Thamel of ESPN, "[t]he current House case is a class-action lawsuit that applies to all current Division I college athletes. That means future college athletes would not be bound by the terms of a settlement reached this year. Berman and his colleagues are hoping that giving each incoming group of new players an option to join the class will provide the schools with enough confidence that their agreement will be hard to challenge with future litigation."

Billions of dollars are on the line with hope in the balance.

Mountain West POY Gets $2 Million NIL Deal.

Great Osobor, who is transferring from Utah State to Washington, has NIL agreements in place to earn him $2 million. The deals were negotiated by George S. Langberg of GSL Sports.

Urban Meyer Shares His Opinion On NIL, In Case You Wanted It.

“I think NIL, and I sat in those committees for many, many years, I think it’s great. I think if it’s capitalism, for example, if a great player like Marvin Harrison Jr. And some car dealership in town wants to hire him, they want to put his name on a billboard and pay him money, sign autographs. He wants to put something on an Instagram or they sell that. But that’s not what’s happened, Coach. What’s happened is it’s cheating,” said Meyer. “And there’s these things called collectives, where they go out and get money from donors and they get this big, giant mass of money and they pay players. And that’s not what the intent is. That name and likeness, that’s America.?America is built on name and likeness."

15-Year-Old Top QB Signs With Agent.

Peyton Houston, a top QB in the 2027 class, has signed with IFA for NIL representation. Houston has already received official offers from the University of Mississippi, Texas Tech, Louisiana Tech, Purdue, Texas A&M, Grambling State, Houston, TCU, Mississippi State, Marshall, Arkansas, Pittsburgh, SMU, and Colorado, among others.

Final Thoughts.

That is it for Vol. 80 of Newsletter, Image, Likeness. Thanks to the more than 8,690 people who have subscribed to this newsletter thus far, and please feel free to share this free resource with others on LinkedIn or elsewhere.

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