House v. NCAA Case Seeks Class Status for Lost NIL Pay

On the heels of Ed O’Bannon and Shawne Alston’s lawsuits against the NCAA’s restraints on athlete compensation comes a petition for class certification from Arizona State swimmer Grant House, Oregon basketball player Sedona Prince and former Illinois football player Tymir Oliver. In a filing last week, attorneys for the plaintiffs reiterated that athletes are entitled to a share of college sports TV revenue – not just now, but also dating back to 2016.

The filing seeks to have the suit certified as a class action. The named plaintiffs would represent thousands of current and former college athletes who have been denied NIL revenue, including billions of dollars in broadcast revenue paid to colleges and conferences, and lost opportunities to participate in college video games like NCAA Football 2014 and NCAA Basketball 10, the last college sports games published by Electronic Arts (EA).

The brief notes that EA sports executives testified in O’Bannon and further commented that they “wanted to license the NILs of college athletes for its college sports video games and tried for years to convince the NCAA to allow it to happen … but NCAA rules prevented [EA] from doing so.” In other words, had it not been for the NCAA’s eligibility restrictions, thousands of college players could have been featured in games and received compensation for their name, image, and likeness.

In summary, the brief aims to establish four classes. The first is an injunctive relief class encompassing all Division I athletes who competed from June 15, 2020 (the date of the complaint) through the case’s judgment, which is slated for trial in September of 2024. The goal of this class is to change the current NCAA rules on NIL via court order.

The other three classes are damages classes in search of monetary compensation. There’s a football and men’s basketball class featuring Division I football and men’s basketball players who have competed collegiately since June 15, 2016. The estimated size of this class is at least 6,280 members. Additionally, there’s a women’s basketball class (at least 856 members) and an additional sports class (at least 7,384 members) that also date back to 2016.

The lead plaintiffs are represented by Winston & Strawn and Hagens Berman. Hagens Berman previously won a $208 million settlement against the NCAA concerning antitrust-related student scholarship limits, and a combined $60 million settlement against EA and the NCAA regarding player likeness rights in video games, to name a few.

The case is currently pending before U.S. District Judge Claudia Wilken, the same judge who presided over two other historic NCAA legal battles, O’Bannon and Alston.

The O’Bannon and Alston cases sought injunctions that would change the NCAA’s rules, just as this case does, and those portions of the cases went to trial. The O’Bannon and Alston cases also included damages claims that were settled, including about $60 million from the O’Bannon settlement (connected to video games and the use of athletes’ NIL) and $208 million from Alston. The latter was based on the difference in the value of a traditional athletic scholarship and one that covered the full cost of attendance.

As the House v. NCAA case targets TV revenue, the potential money involved would likely be even greater with estimated figures in the billion-dollar range.

“It would mean the NCAA and its member schools face a lawsuit that could conceivably claw back billions of dollars and redistribute that money to current and former athletes,” sports law expert Michael McCann wrote. “With House seeking billions of dollars already paid—and at least in theory, already spent—to the NCAA and member schools and conferences, it’s unclear how schools, many of which say they are financially strapped and stress there are restrictions on endowments, would foot the bill.”

Meanwhile, the NCAA has lobbied for a federal NIL bill that would contain an antitrust exemption to the NCAA, schools, and conferences by prohibiting former athletes from suing for retroactive NIL. It also includes a clause that college athletes should not be considered employees. Mississippi senator Roger Wicker reintroduced the bill, but both Democratic and Republican members seem skeptical of an exemption.

For now, the brief rests with Judge Wilken who is tasked with ensuring the plaintiffs’ petition meets a series of requirements before approval, including verifying that the experiences of Grant House, Sedona Prince, and Tymir Oliver are consistent with the classes they claim to represent.

If Judge Wilken certifies the classes, the potential impact would be staggering. The NCAA and the conferences have until April 14, 2023, to respond to the filing.