Newsletter, Image, Likeness Vol. 88: A Longform Settlement Is Expected To Be Finalized 'In The Upcoming Weeks'
Darren Heitner
Founder of HEITNERLEGAL — Sports, Entertainment, Trademarks, Copyrights, Business, Litigation, Arbitration
The Weekly Longer NIL Thought.
"All sides are working to complete the longform of the settlement in the House case, which is expected to be finalized in the upcoming weeks and presented to Judge Wilken. A few details need to be hashed out in the near future, per sources." That was a tweet written by ESPN's Pete Thamel on July 8.
It reads a lot different than his prose in a May 23 article where he said, "Nothing is easy in college sports. And with the Power 5 conferences and NCAA board of governors voting Thursday to accept the settlement of three antitrust cases that create a new structure for the sport, the moment is layered in both historic change and looming ambiguity."
In less than 2 months it feels like the commentary went from proclaiming an historic settlement to acknowledging that there is still a long way to go.
Thamel's July 8 tweet thread added that enforcement of a "mechanism around collectives" remains "vexing for everyone" and that details "may not be fully hashed out until after the longform [settlement] is done." He also advised that we should not "expect immediate clarity on how athletic departments will handle monetary distribution" related to a revenue sharing system that is expected to be revealed as part of a settlement agreement, if it is ever approved by the court. "That’s still a major topic, but not one required to be addressed in this settlement."
I can confirm, in speaking with athletic departments across the country, that the revenue sharing "solution" is a massive topic and is quite concerning, particularly when it comes to Title IX compliance. The NCAA wants nothing to do with providing guidance and I don't blame the Association. It is tired of being sued. It puts schools in a bind, particularly given that, not only does a settlement agreement not need to address how schools should handle monetary distribution, but the expectation is that it absolutely will not provide that clarity.
And as for the "mechanism around collectives," Ross Dellenger reports that, "College leaders contend that the settlement-related injunctive relief grants them the ability to continue their near century-old fight to prevent performance-based pay for athletes through boosters. According to the term sheet, the settlement prohibits recruits or current athletes from entering into any arrangement with a booster unless the deal can be expressly proven as a genuine agreement for use of the player’s likeness. If a booster owns a business, that booster and athletes must show that a deal is related to a 'valid business purpose' with compensation that is similar to agreements with other individuals, documents say. Deals must be 'true NIL' and pay what is described as “fair market value,” something officials hope to determine based on disclosure data."
Yeah, good luck with that.
As I wrote on X, quoting Thamel's thread, in sum: There’s no House v NCAA settlement yet, the parties have no clue how to control NIL collectives, and athletic departments are provided no guidance on how to handle revenue sharing, particularly when it comes to Title IX. Oh, and the judge could still reject it all.
Former Eagles Exec Jake Rosenberg Retained By Oklahoma.
He and his consulting firm will advise Oklahoma's athletic department as it plans for the possibility of revenue sharing.
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Delaware Gets An NIL Collective.
It's called the 302 Collective.
The Huskers Name 1890 Nebraska Their Official NIL Collective.
Alabama Commit Explains How NIL-Related Recruiting Went Crazy Right Before His Commitment.
Class Of 2026 FSU QB Commit Signs Multi-Year Exclusive Trading Card Deal.
Final Thoughts.
That is it for Vol. 88 of Newsletter, Image, Likeness. Thanks to the more than 8,895 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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Lawyer, Class Actions, Civil Litigation, Personal Injury, Sports Law, Sports Business
7 个月I should add that I am most interested in seeing what the response is from the actual athletes (“settlement class members”) who will be given an opportunity to opt out and object.
Lawyer, Class Actions, Civil Litigation, Personal Injury, Sports Law, Sports Business
7 个月Thanks Darren for the thoughtful write up on the “House” settlement. A few questions worth considering. Would football and basketball players be better off under an employment model? Would college athletics as a whole be better under patchwork NIL/employment models? Valid questions posed but in terms of revenue sharing allocation, the fact that the NCAA has left this open to colleges is a good thing IMO. There are many reasonable approaches to such an allocation and as long as the approach is not arbitrary, I don’t see that as a major hurdle. The schools or conferences are likely to confer on this in any event with guidance from counsel. Judge Wilkens may also provide input at the time of the preliminary approval hearing. Questions around collectives and continuing involvement of plaintiffs’ counsel and “Masters” may be more problematic, but court appointment of Masters or “Court Monitors” to oversee settlement administration is not a new concept. I’m a glass half full kind of guy. The preliminary hearing is set for early September I believe so you will have more to write about for a while.
American Athlete Foundation, PostseasonNIL.com
7 个月Richard G. Johnson It’s designed to go around in circles, and stall, and delay so that they can act like they are trying to get something done but they are actually just getting richer at the expense and exploitation of young impoverished underprivileged minority boys and their families and communities! That’s it, that’s the only group that is being robbed, abused, and illegally exploited!
Masters in Sports Leadership
7 个月Great work as usual
Plaintiff's Lawyer & Sports Agent Malpractice ? Legal Ethics & Professional Responsibility Issues ? College Athlete Rights Advocate
7 个月So the fake settlement is still being talked up? The NCAA cannot agree to it without a member vote. The Conferences cannot agree to it without their members being authorized by their individual board of trustees to accept, yet not a single public board of trustees has authorized its president to even engage in negotiations let alone a settlement. No player gets paid or employee status, unless their team could in isolation be characterized as a going concern, which is just the P5/P4 FB & MBB teams. That’s the main reason why Dartmouth players can’t be employees of a non-revenue generating program that exists only because Dartmouth funds it. All these social media reports are just gossip by people who don’t understand the legal issues, and who are just acting as free PR for the grasping lawyers trying to reorganize all of college sports on a case about a swimmer’s claimed loss of NIL revenue, which is unprovable, but if imagined, would be small potatoes. So let’s go back to the beginning and ask how the defense lawyers are going to explain to the Judge that a fake settlement is legally authorized and accepted? Maybe there’ll be a lot of footnotes?