One factor in whether U.S. District Judge Claudia Wilken grants final approval to the NCAA’s proposed settlement to resolve the House, Carter and Hubbard antitrust litigations is the extent to which athletes impacted by the settlement raise persuasive objections.
Last Friday and Saturday, Wilken received objections from Stanford University football player David Kasemervisz and Temple University gymnast Emma Reathaford, respectively. Both offered detailed rebukes, and both wish to raise their arguments when Wilken holds a fairness hearing on April 7. During that hearing, Wilken will assess whether to grant final approval. She’ll apply Federal Rule of Civil Procedure 23 to and assess if the settlement is “fair, reasonable and adequate” to class members.
Kasemervisz, a wide receiver and special teams player over the last four seasons, objects to the settlement limiting recovery to full grant-in-aid players as part of the “settlement football and men’s basketball class.” That class covers Power Five basketball and football players who competed from 2016 to 2024. Kasemervisz was a preferred walk-on, meaning he didn’t have to try out for the team. However, Kasemervisz notes, he “did not receive the same financial benefits” as a grant-in-aid player.
Kasemervisz emphasizes that everything about his experience playing football at Stanford, including time spent on practices, training, attending meetings and satisfying athletic and academic standards, resembled the experiences of his teammates. He played in games that were broadcast on TV and his NIL was used.
Kasemervisz adds that some of his teammates who were grant-in-aid players likely played less than him, and yet they are class members. He argues “it is not fair that athletic scholarship status alone determines that one player’s NIL on the field is worth significant broadcast compensation” when that player’s teammate was “in the same game.” Since whether a college athlete can earn NIL compensation is unrelated to whether that athlete is on athletic scholarship, among other possible student athlete distinctions that have no bearing to NIL, Kasemervisz maintains the settlement is deficiently constructed.
To remedy this defect, Kasemervisz proposes the class definition be expanded to include Power 5 athletes who “actively participated” and thus contributed to the broadcast revenue. He suggests one “easily verifiable measure” would be to consider presence on a roster. Another option, he notes, would be to weigh games played/snap count.
Reathaford, whose objection was raised through a brief authored by an attorney (Laura Reathaford, a litigation partner at Lathrop GPM in Los Angeles), objects to the injunctive relief component of the settlement and specifically its roster limits. The settlement contemplates roster caps that will lead to fewer slots for D-1 athletes, with some sports impacted more than others.
Reathaford argues that “thousands” of D-1 athletes will “be irreparably harmed because their schools will be forced to cut them from their current teams.” The harm would be “irreparable” because being displaced from a team is not a legal injury that money damages can cure; the athlete will lose the chance to play a D-1 sport, develop as a student-athlete and potentially land NIL deals. An athlete denied a slot could lose a scholarship opportunity which is exacerbated by the fact that college is a finite period of one’s life and the chance to play college sports is finite too.
Reathaford identifies multiple legal problems.
First, she contends the injunctive relief settlement creates a conflict between class members in violation of Rule 23. The settlement will treat some D-1 athletes better than others and will cause some to lose roster slots, which could mean a loss of an athletic scholarship or other types of aid and benefits.
Second, Reathaford asserts the settlement violates protections provided by Constitutional due process. She maintains the class representatives’ counsel, which includes Jeffrey Kessler, “is conflicted” because of “the diverging interests of the members” of the damages and injunctive relief classes. Reathaford contrasts how some college athletes will reap the benefit of millions of dollars paid over 10 years while others will be cut as schools comply with roster limits. Further, she argues, it “appears that class counsel has knowingly disregarded [athletes’] rights in exchange for a large monetary payout.” As Sportico detailed, attorneys for the players stand to receive almost $500 million should the settlement advance.
Third, Reathaford contends the settlement has “absolutely no nexus” between the underlying antitrust problems that sparked the litigation—unlawful and anticompetitive agreements by NCAA members to restrain athletes’ commercial opportunities—and the imposition of roster limits “that will cause schools to renege” on promises with class members. In other words, Reathaford insists the settlement doesn’t redress underlying problems and instead causes new types of injuries to class members.
Reathaford requests that if Wilken grants final approval, the injunction should be stayed pending any appeals to the U.S. Court of Appeals for the Ninth Circuit. She notes the monetary relief portion of the settlement permits a stay in the case of an appeal and argues the same should apply to the injunctive portion.
The objections filed by Kasemervisz and Reathaford are not the first since a settlement was reached last year. Last October, seven former and current D-1 athletes represented by Hausfeld LLP raised eight arguments. The settlement, they argued, conflicts with state NIL laws and sets payments to athletes far below market value. The seven athletes also maintained the settlement’s “salary cap” feature, wherein colleges can elect to pay athletes up to 22% of revenue, is insufficient and constitutes an artificial restraint.
Also, the Department of Education and Justice Department recently offered commentaries about the settlement. Via a fact sheet, which is not a law, ruling, rule or regulation but instead a non-binding opinion, the DOE asserted that Title IX applies to NIL payments made by schools. The DOJ, meanwhile, filed a statement of interest arguing the “salary cap” merely replaces a cap of $0 on college athletes’ potential earnings to one worth about $21 million per school, but neither reflects a competitive market. It is noteworthy that the DOE’s and DOJ’s positions were made during the administration of President Joe Biden; it remains to be seen whether those agencies will share the same viewpoints under President Donald Trump.
Expect to see more objections and critical statements prior to April 7. Wilken will likely find objections raised by class members—meaning the athletes, and not politicians, industry insiders or thought leaders—most salient since they directly relate to her application of Rule 23.
One important factor to consider is that a settlement doesn’t have to be perfect and won’t be “perfect” from the standpoint of either side. After all, it’s a settlement, meaning it reflects a bargain and give-and-take. The NCAA, for example, wouldn’t have settled unless there was a cap, among other features including potential review of NIL deals. The relevant benchmark for Wilken is to determine whether the settlement is reasonable and adequately addresses the underlying issues that made the athletes sue in the first place.
