Photo by Jacob Rice on Unsplash
After nearly three hours of probing questions and answers from Judge Claudia Wilkins at yesterday’s preliminary approval hearing, several intriguing takeaways emerged:
Judge Wilkins and the Settlement: A Clear Preference for Resolution
Judge Wilkins seems intent on steering clear of obstructing the settlement process. Despite at least two significant sticking points discussed below, she appears optimistic that these issues will be resolved by the parties themselves. Her encouragement for the parties to start drafting the settlement notice by the end of the hearing underscores her expectation for a resolution.NIL Money and the Judge’s Sticking Point
The right for athletes to continue receiving certain NIL (Name, Image, Likeness) money from collectives is the major sticking point for Judge Wilkins. While she’s not likely a cheerleader for collectives, she doesn’t see a strong reason to eliminate this potential income source for athletes. The parties argued that this provision doesn’t significantly alter the status quo, as the only prohibition in the settlement is against pure pay-for-play deals with no legitimate business interest (e.g., "come play football and we’ll give you five million dollars"), which are already banned by the NCAA. However, Judge Wilkins remained unconvinced. It seems this provision is a key point of negotiation for the NCAA, possibly to prevent any future court from allowing collectives unrestricted payment power. The NCAA appears ready to defend this point vehemently.Binding Future Class Members: A Potential Hurdle
Another potential snag is whether the court can bind future class members—such as current fifth graders who might become college athletes down the line—who aren’t represented in this case. Judge Wilkins seemed to suggest she’d feel more at ease if these prospective members were represented by separate counsel, though it’s unclear if this alone would address her concerns.Title IX Concerns: A Quiet Issue
Title IX doesn’t seem to be a major concern at this stage. Despite the likelihood of future litigation, neither the judge nor the predominantly male legal teams appear particularly worried about it right now, although Judge Wilken requested the parties clarify that the settlement does not release Title IX claims. An objection raised by Attorney Steve Molo, representing a group of female athletes and arguing that the settlement unfairly values women’s sports, seemed to have little impact on the court’s focus.The NCAA’s Stance: A Firm Negotiator
The NCAA doesn’t appear thrilled about this settlement or is simply willing to play hardball, threatening to walk away if their terms aren’t met. At any mention of possible changes to the negotiated provisions, NCAA counsel was clear that the removal of any provision could jeopardize the settlement. This stance could reflect the NCAA's general attitude or just the personality of their legal team. Either way, they’ve signaled a strong disinterest in altering settlement terms and would prefer to go to trial if necessary. Whether this is a strategic bluff remains to be seen.
The parties have three weeks to address these sticking points and submit a revised proposal for Judge Wilkins’s consideration. It’s likely they’ll find a resolution to the judge’s concerns, but the ultimate decision will rest with Judge Wilkins on whether the proposal meets her standards.