Attorneys for Arizona State swimmer Grant House filed a 51-page brief on Friday petitioning for class certification in their antitrust lawsuit against the NCAA.
The House v. NCAA case focuses on missed opportunities for college athletes to profit off their name, image, and likeness (NIL) prior to the NCAA’s rule change last July. It also seeks injunctive relief for current NIL policies that attorneys argue still limit the full scope of athletes’ publicity rights.
“The interim NIL rules do not permit direct NIL payments to athletes from the NCAA, conferences, or schools,” the brief said. “In essence, after arguing for years that NIL compensation would be the death knell of college sports, Defendants have now embraced NIL compensation, but only insofar as it is paid for by third parties and not out of their own pocketbooks.” These third-party deals, the brief claims, “do not come close to restoring to college athletes the full value of their NILs.”
“It’s not as though Defendants do not have the means to share with athletes the billions of dollars in broadcast revenues that their NILs help to generate for Defendants,” the brief adds. College players “play in stadiums and arenas that are filled with logos—endorsements of companies that compensate their colleges—and they compete on national television in uniforms and shoes licensed by their schools.”
House, currently using his fifth year of eligibility with the Sun Devils’ program, is joined by Oregon basketball player Sedona Prince and former Illinois football player Tymir Oliver as lead plaintiffs represented by Winston & Strawn and Hagens Berman. Hagens Berman has achieved favorable outcomes for clients in the past, including winning a $208 million settlement against the NCAA concerning antitrust-related student scholarship limits, a combined $60 million settlement against Electronic Arts and the NCAA regarding player likeness rights in video games, among others.
“The way the rules are right now, the NCAA puts college athletes who are shooting for the Olympics at a huge disadvantage to other athletes training to compete,” House told SwimSwam when the lawsuit was first filed in 2020, a year before the NCAA restored publicity rights to college athletes. “Our ability to fund our Olympic training efforts are essentially squashed by the NCAA’s rules on name, image and likeness. While Olympic athletes in general rely heavily on endorsements and other image deals to afford the cost of competing and training, the NCAA shuts us out of that opportunity entirely.”
Friday’s 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.
Judge Claudia Wilken, the same judge who presided over landmark NCAA legal battles such as O’Bannon and Alston, is now tasked with making sure the plaintiffs’ petition meets a series of requirements before approval. One of those tests is verifying that the experiences of House, Prince, and Oliver are consistent with the classes they claim to represent.
If Judge Wilken certifies the classes, the impact could be massive.
“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.”
At this point, the NCAA’s best bet of preventing college athletes from being compensated further might be through federal legislation. Last month, Mississippi senator Roger Wicker reintroduced an NIL bill that offers 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. However, both Democrats and Republicans seem skeptical of such an exception.