In opposing the NCAA and Power Five conferences’ petition to the Ninth Circuit to review In Re College Athlete NIL Litigation—a case that could force the defendants to pay over $4 billion in damages to current and former college athletes—attorneys for Arizona State swimmer Grant House, former Oregon and current TCU basketball player Sedona Prince, and former Illinois football player Tymir Oliver argue the NCAA and Power Five’s legal theories are “specious” and “preposterous.”
The players’ arguments were explained by their lead attorneys, Jeffrey Kessler and Steve Berman, in a brief filed Tuesday.
As Sportico detailed, the NCAA and Power Five recently petitioned the Ninth Circuit for a permissive interlocutory appeal, a rarely granted measure that would mean the Ninth Circuit reviews U.S. District Judge Claudia Wilken’s decision to certify a class action on behalf of more than 14,500 college athletes. Appellate courts seldom accept such appeals, since they prefer to review a case only after a final decision, rather than in preliminary form and in pieces. In Re College Athlete NIL Litigation isn’t scheduled for trial until 2025.
The case is potentially catastrophic for the NCAA, because if the plaintiffs prevail, the NCAA and Power Five would be on the hook to pay damages for denying (1) a share of broadcasting revenue with players, (2) the opportunity for revenue that would have been possible in college sports video games and (3) NIL opportunities prior to 2021.
The NCAA and Power Five called such an outcome a “death knell,” claiming they may be forced to settle the case even if they believe the players’ arguments are unconvincing and wrong. The defendants feel an intense pressure to settle because they can’t afford to lose a case that carries such an enormous price tag.
But through Kessler and Berman, the players contend the NCAA’s arguments fall far short of an “extraordinary” circumstance suitable for an interlocutory appeal.
The players seemingly mock the NCAA and Power Five for suggesting the case poses the “risk of ruinous liability” and for worrying they lack the financial wherewithal to pay up.
“More than $7 billion in annual revenue—attributed to P5 public schools alone—ought to be enough to cover defendants’ litigation costs,” the players write. Along those lines, the players underscore that the damages claim for TV money—a 10% cut to the players—is “a miniscule amount of their overall revenues that continue to grow significantly year over year.”
The players also contend the NCAA’s “death-knell forecasts” are “even more preposterous juxtaposed against the profligate spending that defendants and their members engage in voluntarily.” In noting that schools worried about paying players could always cut high salaries of coaches and staff, the players draw particular attention to Jimbo Fisher. Texas A&M recently fired Fisher despite the fact that it will need to pay him $77 million to buy out his contract—to literally not coach the Aggies—suggesting no Power Five school is going broke anytime soon.
The players also dispute the NCAA’s contention that the class structure is so flawed it warrants interlocutory appeal. The NCAA and Power Five maintain it is illogical to put players in the same class when NIL and broadcast NIL (BNIL) vary by individual player. The defendants spotlighted a quote from USC quarterback Caleb Williams, who questioned why Electronic Arts pays each player—star or backup—the same $500 fee to appear in its forthcoming game, EA Sports College Football, to maintain NIL and BNIL vary widely by player and are ill-suited for a class.
The players insist that line of reasoning is unconvincing since “expert evidence shows that when there is a need to convey NIL rights for athletes on a large scale, equal sharing is the typical market outcome.” They also note that the “defendants themselves share television revenues on an equal basis” even though there are sizable variations in the value of each school’s broadcast rights, both collectively and by sport.
The Ninth Circuit will act on the NCAA’s petition in the coming weeks, though there is no set timetable and a ruling might not occur until after New Year’s.