While no decision has yet been reached, the notes from the House v. NCAA settlement hearing on Monday with US District Court Judge Claudia Wilken are worth a deep read as there are a lot of issues discussed. There are lot’s more to be heard before a decision can be made.
USA Today writer Steve Berkowitz filed notes from the courtroom during the hearing. Here’s a link to the story he was updating during the hearing, which ran from 1 p.m. to 8 p.m. ET in Oakland, Calif.
Here are the top 10 items discussed that I think are noteworthy:
1. The hearing is to give final approval to the settlement document. So a scene is painted that you don't see every day, with the plaintiff’s lawyers and the NCAA’s lawyers on the same side of the table, and with the objectors to the settlement on the other side of the table.
2. I found it compelling and worrisome if you are the NCAA and the conferences that Wilken presses the lawyers about claims of future athletes because this settlement was constructed with the interests of current and past athletes. Plaintiff lawyer Jeff Kessler says incoming athletes would be notified annually with a notice of opportunity to raise objections with a court and be advised to consult with a lawyer or a parent, and that would allow the judge and/or the athlete to respond to any changes in circumstances in college athletics. Future athlete rights would not be bargained away, which would be consistent with due process.
Berkowitz writes that Wilken was reluctant and asked whether there are legal precedents.The attorney for the NCAA and conferences, Rakesh Kilaru, backs up the plaintiff lawyer argument.
Wilken asks what happens if a judge decides that a future athlete has a sufficient problem to merit a change in the agreement. Kessler says a judge would then be allowed to terminate the settlement.This seems to be a very central issue for her.
3. Another important moment occurred when Wilken asked about approving parts of the universal, multi-case settlements, and the NCAA’s Kilaru said the NCAA and the conferences want a full approval or not.
4. Interesting note during the objector's segment: a lawyer representing FSU quarterback Tommy Castellanos raised questions about the “role of the entity operating as the College Football Playoff’s role in the settlement." Is the CFP released from liability? Wilken said she will ask the principal’s lawyers. The CFP operates separately from the NCAA, which collects no revenue from the CFP or from bowl games.
5. Another objector was addressing future events and was interrupted by Wilken, who re-directed him to the issues of the legality of the settlement as it pertains to her original concern. Wilken: "Can you have a class of future people who aren't known yet? Can you release claims for things that haven't occurred yet?" Again, this seems at odds with Judge Wilken's legal sensibilities.
6. Leigh Ernst Friestedt, who represents four women athletes, argues against how little of the damages would go to past women athletes. Wilken says: “We can’t solve all these problems retrospectively. It’s too bad, but…” The argument is if schools had been allowed to make NIL payments, those payments would have been subject to Title IX, a conversation that will be discussed later.
7. A former Washington All-American linebacker Ben Burr-Kirven and LSU gymnast Olivia Dunn ...
