As Judge Claudia Wilken considers whether to accept the proposed settlement in the House antitrust case, a battle has emerged over who speaks for NCAA athletes.
On the one hand, Jeffrey Kessler and Steve Berman are attorneys for the “Damages Class Settlement,” a group of about 19,000 athletes mostly in power conference athletic programs from 2016 to the present. On their behalf, these attorneys have negotiated a $2.8 billion settlement agreement.
In addition, they represent 390,000 athletes for direct payments in the future, in an arrangement that the attorneys call pay-to-play. The proposed settlement would also allow schools to make direct payments to athletes in annual amounts over $20 million for the next 10 years.
By any historical yardstick, this is an astounding advance for the cause of paying college athletes for the immense wealth they generate for their schools.
But Jordan Bohannon doesn’t share this view. Bohannon was a gritty basketball player for the Iowa Hawkeyes. He teamed up with Michigan’s Isaiah Livers and Rutgers’ Geo Baker during the NCAA’s March Madness tournament in 2021 to promote their #NotNCAAProperty cause.
Seeking full economic rights for college athletes, Bohannon protested: “It’s been far too long. Time for our voices to be heard.”
Last week, he spoke again with six other NCAA athletes who have a filed a motion to intervene on behalf of the damages class in the House case.
This is a massive, thoughtful filing with more than a dozen very lengthy attachments.
These former athletes are arguing to Wilken that the proposed settlement is far too low for athletes.
Their filing depends in significant part on Openendorse’s analysis of past, current and future NIL deals.
Opendorse is a major platform for booking NIL deals. It also publishes annual reports on the deals they transacted for college athletes. In short, their figures are both authoritative and credible.
In a nutshell, Bohannon’s motion states: “If college athletes were eligible to receive such payments starting in 2016 and if the trend in the but-for world for NIL Collective spending from 2016 onward mirrored the actual trend from 2021-24, then college athletes would have earned at least $6.4 billion from NIL Collectives from 2016-24, accounting for inflation. This $3.8 billion differential is not accounted for in the DCS (Damages Class Settlement).”
So far, this looks like a typical motion to intervene, where someone in a settlement class complains that they’re not getting enough money.
But there are troubling signs that Kessler and Berman are short-changing all these past, present and future college athletes.
Bohannon’s motion is concerned that these attorneys would be required to “secure antitrust immunity and preemption of state laws for the NCAA from the United States Congress” in a way “that conflicts with Class Counsel’s obligations.”
In other words, this settlement would provide potent ammunition to advance legislation that would permanently shield the NCAA and power conferences from anymore antitrust lawsuits from athletes.
And worse for college athletes, the settlement would put Kessler and Berman in the position of advocating to Congress for a law that denies college athletes any right to employment and to bargain collectively.
How ironic that Kessler, whose antitrust lawsuits reshaped NFL free agency for the players union since the 1980s, is working to deny these rights to college athletes.
Bohannon’s filing contends that the proposed settlement doesn’t represent the interests of NCAA athletes, while stopping short of accusing Kessler and Berman of selling out their clients.
But Sedona Prince, one of the lead co-plaintiffs, suggested this possibility in a recent New York Times interview.
She opened up, saying: “My lawyers educated me a lot about what’s going on. But a few months ago, all of a sudden it got leaked that we’re settling finally. We got kind of blindsided, right? I felt like I had been a part of it and so passionate about it for so long. … And so all of a sudden to be like, ‘Oh, yeah, we made a decision and we’re settling on this and that’s that.’”
Separately, ESPN reported: “Berman and Kessler’s law firms also requested to receive nearly $500 million (slightly less than 20 percent of the damages) for their fees and to cover their expenses. The lawyers also proposed receiving roughly 1 percent of the money schools pay players during the next 10 years.”
A former NBA player, David West, and sports lawyer Ricky Volante recently filed a brief in opposition to the House settlement.
They believe that Kessler and Berman are making a deal that would deprive college athletes a voice in their economic relationship with the NCAA.
In a recent news account, Volante said, ‘“We have yet to speak with a single athlete, parent or AAU director who was aware or even knew to look into the impact of this settlement on their future.’”
Volante added, “That was just so concerning for us. Yes, the current and former college athletes have Berman and Kessler and the various other lawyers involved representing them, as they should. But as soon as this became a component of this settlement, prospective injunctive relief in addition to retro damages, those prospective athletes are not being represented and communicated with. That’s highly problematic in our opinion.’”
Meanwhile, Prince told The New York Times: “I flew out to Notre Dame a few weeks ago to talk to their student-athletes about what is going on and what the future is going to look like. Enough student-athletes’ voices have not been heard at all. We should be viewed as shareholders in this multibillion industry. We’re the work force. We’re allowed to make our own decisions. I wish I could have had more of a say, even as a plaintiff, which is crazy to say.”
Perhaps it’s time for Bohannon to adopt a new campaign, #NotOurAttorneys’Property.
