Newsletter, Image, Likeness Vol. 89: House V. NCAA 'Settlement' Must Be Causing Heartburn

The Weekly Longer NIL Thought.

I hope you're not tired of hearing about this alleged, proposed, not-yet-drafted, championed, praised, and heavily promoted settlement in the House, Hubbard, and Carter cases against the NCAA. Because we have more to talk about. Mainly that it's a mess.

The latest is that it's delayed. Lead plaintiffs' lawyer Jeffrey Kessler blamed "infighting" between the NCAA and the conferences, who are the named defendants in the actions.

"They just have to get their act together or frankly we are going to go to the court," said Kessler in a statement that seems quite adversarial and not very conciliatory.

But I thought the oddest comment from Kessler was when he asked, "Why would there be defections?" He added, "The past damages are one of the largest antitrust recoveries in history, period—not just in sports cases … We are estimating that over the next 10 years this will provide athletes on the order of $20 billion in new benefits they couldn’t otherwise receive. There is not a lot not to like about this."

That depends on who you ask.

My colleague Richard G. Johnson , a frequent commenter on this newsletter, provided his opinion that this is silly. He characterized Kessler's comment as "Kinda like, 'Damn it, settle it my way,' or what, the judge will settle it for them? No, she won’t, she’ll just rule on summary judgment."

"As far as this continuing fake settlement, not a single defendant has authority to settle, so it will be awkward for defense counsel to explain that to the court," added Johnson. "'No, your honor, the NCAA didn’t have a member vote to approve this, and the NCAA Board doesn’t have authority to do it on its own. No, your honor, not a single public university board of trustees authorized their president to vote in favor at the conference meetings.' The absurdity of it all is mind boggling. Lots of lawyers may get sanctioned. And the judge isn’t going to approve anything that binds non-parties, and she’s not going to approve terms outside of the pleadings, because she doesn’t have jurisdiction to do so. She’s not going to legislate college sports. She’s not going to tell the federal government how to enforce Title IX."

Most athletic directors are ignoring the above and "preparing for revenue sharing." Yet, Wren Baker , West Virginia University's athletic director, appears to be a rare breed in that he actually understands what is going on . . . which is to admit to not knowing much at all.

“For us, you are trying to think through all the contingent scenarios. People are talking about the settlement like there is a settlement, but right now there’s a proposed settlement and the judge still has to agree on the initial terms and the people can object," said Baker. “There’s already been some people and institutions who have said they are going to object, so the finalization of this settlement really won’t be until after the turn of the calendar year and may be much longer than that. It’s really hard to have a definite plan for something you don’t know how it will exactly look.”

Exactly. It's really hard to have a definite plan for something you don't know will even come to fruition. And if it does, what about Title IX?

As I wrote in Vol. 86, NCAA President Charlie Baker defers to the federal government to create a national standard and provide guidance on that subject. The NCAA doesn't want to establish a policy surrounding Title IX. Wren Baker says, "One school of thought is that do we get some kind of indication from the government on Title IX implications, if there are any. That’s a big factor in all of this."

The comedy is that the U.S. Department of Education says that Title IX rules will apply to any revenue-sharing system, but refuses to offer guidance on how monies should be distributed.

All I can say at this juncture is, OY VEY!

Houston Christian University Submits Reply Brief In Support Of Motion To Intervene In Proposed House Settlement.

"In its new brief, HCU stresses that it is not a 'class member' and thus 'will not get notice' about the settlement should [Judge] Wilken approve it." writes Michael McCann . "For that reason, the school maintains it has not filed too early, as asserted by the NCAA, power conferences and players. The school adds that while it will be on the hook for $3 million in NIL-related harms, there’s 'no evidence HCU deprived anyone of name, image or likeness rights.' HCU also maintains the plaintiffs and defendants are logically inconsistent in that they 'claim HCU is not just too early, it is also too late.'

"As another argument in favor of intervention, HCU rejects the NCAA suggesting it represents the school’s interests. HCU notes that when the players sued, they obviously did not view the NCAA as including the Power Five (now four) conferences since the players separately named those conferences as defendants. HCU finds it absurd that 'when confronted by a member of the Southland Conference—not one of the Power 5 conferences—the NCAA magically represents HCU.' HCU says 'none of the defendants' represents HCU or has 'even pretended to do so.'"

The University Of Nebraska And Its Collective Enter Into 'Data Sharing Agreement.'

"The 10-page document, which was obtained through a public record request, is to date one of the most extensively memorialized school-collective compacts, and models how others might soon follow suit," writes Daniel Libit. "The agreement stipulates that the school will now apply its 'priority points' system to 1890 Nebraska backers, thus enabling the collectives’ donors to gain improved access to UN home and away game tickets and postseason events. How exactly that will be conveyed is unclear in the document, which only speaks to it in broad terms. In far greater detail, the agreement designates the ways in which the collective and university will share and maintain confidences about donor information."

Adidas Golf President Explains Challenge Of Measuring ROI With NIL.

“It’s hard enough, when they’re professionals, to really measure the ROI on some of these agreements,” says Jeff Lienhart , president of Adidas Golf. “We believe in the system and we believe in having these partnerships with professional athletes. NIL is even that much more difficult to measure an ROI.”

Opendorse Announces Stephen Denton As New CEO.

From the press release: "Denton brings a wealth of experience and a proven track record as a CEO, having successfully scaled businesses in technology, media, AI, and e-commerce. He has built and sold companies to marketplace giants like Rakuten and eBay. Most recently, as CEO of Ware2Go, Denton led the company through a rapid expansion of revenue growth and scale over four years culminating in a successful acquisition by UPS.

"Founders Blake Lawrence and Adi Kunalic will continue to play pivotal roles within the company. Lawrence will assume the position of President, Collegiate Operations. In this role, he will work closely with Opendorse’s collegiate partners, taking a hands-on approach with athletic directors to assist athletic departments in making informed decisions through Opendorse’s proprietary insights, especially in navigating the revenue-sharing landscape of NIL."

Final Thoughts.

That is it for Vol. 89 of Newsletter, Image, Likeness. Thanks to the more than 8,910 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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