Off the Blue Podcast: Sam Ehrlich on the Impact of the Potential House Settlement
4/3/2025 10:00:00 AM | General
Off the BLUE: Sam Ehrlich-Impact of House Settlement on College Sports, April 2, 2025
Sam C. Ehrlich, Assistant Professor, Legal Studies in Business, Management in the College of Business and Economics at Boise State, shares the latest on the House settlement and the impact on college athletics.
The following transcription is edited.
On how he got interested in sports and sports litigation.
I've always been interested in the behind the scenes of sports. I've really found all that stuff fascinating. In fact, going back when I was growing up, July 31 was always my favorite day on the calendar for two reasons. One, it was the baseball trade deadline and it was always really fun to track all that and see what's going on and then two, which was secondary, it was my birthday. So that's a good day, my birthday and the trade deadline. But all that stuff always fascinated me.
So, when I went to college, I was able to go to the University of Massachusetts and their amazing Sports Management program.
I got my bachelor's in Sport Management from UMass and then went to law school to focus on sports law. When I was at UMass, I got a chance to take a sports law class with professor Glenn Wong, who is one of the titans in the sports law field, and I just loved every second of it. I was a research assistant with him which led to an internship with the New York Jets.
I was always interested in the legal aspects of sports, behind the scenes, and the way college sports and the law interacts because it is so radically different from how the law interacts with traditional business in a lot of really interesting ways.
On how the College Sports Litigation Tracker began.
The College Sports Litigation Tracker is a non-profit, subscription-less venture made mostly to help Professor Ehrlich keep track of all of the legal chaos surrounding the NCAA in the post-Alston world, as much of his research is focused around the legal aspects of college sports and these emerging cases.
I was talking with my good friends and fellow professors, Joe Sabin at Southeast Louisiana and Neil Turner at Northern Illinois, and various journalists, and we agreed it would be nice to have a website with access to all the legal documents against the NCAA, especially since the Supreme Court's decision on Alston, to track the tangential cases that are shifting college sports in so many different radical ways.
On how the House v NCAA affects college sports today.
The House v NCAA is a class-action antitrust suit against the NCAA and its conferences and seeks to revamp how the NCAA operates.
The House settlement is a legal settlement to class action settlement that looks for the NCAA to settle three different cases; three antitrust cases that have challenged three different areas of NCAA rules.
House v NCAA
Hubbard v NCAA
Carter v NCAA
Defining antitrust law as it relates to the NCAA.
The NCAA, through its amateur rules (status), has restricted the competition for college athlete labor. The NCAA has pushed down the prices of college athlete labor by restricting NIL, at least until House is approved not allowing universities and colleges to pay athletes directly for things like broadcast and NIL.
And just generally speaking the amateurism rules that the plaintiffs have argued that, but for these amateurism rules, but for this concept of amateurism,
College athletes would be able to get paid and be able to get paid handsomely, which is something that we're seeing now, in this new market.
So, the house settlement settles these three cases in two different ways.
The first way is through back damages, where athletes from 2016-20 to when the health settlement was approved will get money in terms of back damages from a pool of $2.576 billion dollars, so a healthy amount of money.
And the second area is through what we call in the law, injunctive relief, where essentially the court is going to impose through the settlement, this injunction, this court order that will force the NCAA through their agreement to make certain rule changes, i.e., revenue sharing, roster limits and third party NIL.
And these rule changes will be one allowing for revenue sharing, where universities can share revenue, or pay their student-athletes directly up to a cap of 20%. Right now between the P5 schools and Notre Dame, I would say it's approximately $20.5 million per year.
Two will be through kind of the inflammation of roster limits, which will replace scholarship limits.
For example, in football, you could have up to roughly 130 football players, including a number of walk-ons, but only have 85 scholarships. Now it's going to be a straight 105 roster and 105 scholarships.
You can have scholarships up to the roster cap, instead of having an arbitrary number below that, that limits how many scholarships you can give.
So that's the roster limit part of it.
So those three injunctive rule changes are the light switch that's going to be flipped on April 7, the day of the final hearing on House v NCAA.
On what Bronco fans can expect on April 7.
It'll be interesting. It's one of those things where when we're talking about class action settlements, we're talking about a standard that it has to be fair and reasonable to everyone in the class.
And there's a number of arguments saying this, i.e., the settlement isn't fair and reasonable, the settlement sets an arbitrary cap on revenue sharing, etc.
Why are we limiting it to $20.5 billion? Why aren't we having kind of a broader free market overall?
The roster limits have been a huge source of concern for a lot of people, because it's really kind of pushing universities, pushing athletic departments to be able to cut a number of players to get down to those newer roster limits, which, in a lot of cases are smaller and are less fluid than you know we you'd be able to have walk ons beyond those numbers now you can't.
And there's really just, again, just a lot of objections to the settlement. There's going to be, I think, 11 witnesses testifying, saying on April 7 that the House shouldn't have been approved.
But it's one of those things where it's in the hands of one person, Judge Claudia Wilkin, U.S. District Court of Northern California. She's going to be the one who decides whether she feels it's very reasonable.
Due to the amount of interest, judge Claudia Wilken will hold a final settlement hearing in the class-action case House v. NCAA across two sprawling courtrooms. If approved, as most expect, it will usher in a revolutionary change to how athletic departments operate and is poised to be the biggest refashioning of college sports since a landmark 1984 Supreme Court decision paved the way for television to become ever more ubiquitous for schools and conferences.
There might be appeals after that, but it's really going to be in her hands. It's going to be up to her to decide.
But based on the preliminary approval hearing that we had several months ago, and kind of the way she handled some of those objections back then, I would expect it to be approved.
It may be something where she kind of pushes the parties to make a few changes, but I would expect it to be approved.
On whether the revenue sharing era will begin on April 7.
I think that's fair to say. I think that it's really a good way of putting it, because once that settlement is approved, whether it's on April 7, or maybe a few days later or a couple weeks later, that's going to kick off revenue sharing.
And even if the settlement isn't approved, there are some rumors out of the NCAA, some thoughts out of the NCAA.
And honestly, I think it makes sense, given how schools have kind of geared up for revenue sharing already.
I would imagine the NCAA, even if the off chance of settlement isn't approved, which is possible, it could happen, but if it isn't approved, we're probably going to see some form of revenue sharing anyway.
The bottom line remains that for the first time starting this fall, just about every major program will be directly paying players some form of compensation beyond the typical scholarships and associated awards they normally receive.
On the current formula in place for revenue sharing.
The formula for revenue sharing is based on what Kessler and Berman, the two lead attorneys for the plaintiffs outlined, their end-goal.
Kessler is a big collective bargaining guy, a big labor law guy.
He's represented the NFLPA, the NBAPA, the MLBPA, all these different unions and collective bargaining agreements and collective bargaining disputes.
If you follow collective bargaining disputes between the professional sports and their unions, there's always a goal to have a 50/50 revenue split.
We want to have a split between revenue, between the teams and the players of roughly 50/50 and sometimes it's a little malleable, but that's really the goal here.
So, the way that Kessler and Berman really approached this, from what they've been saying and what they've written in their various briefs, defending the settlement, is they're looking to have this 50/50 split.
So, the way they calculated, and the way that Daniel Rascher their expert witness economist, calculated it is that when you include not only the revenue sharing, the 20% revenue sharing that is going to going to be allowed along with scholarships and other benefits that college athletes receive, that whole collaboration, the cost of all that will equal roughly a 50/50, split.
On how school collectives differ from the house settlement and how it will affect those NIL collectives in the future?
Well, it's kind of an interesting thing, because NIL has really morphed into something entirely, strange, and something that is very like NIL in itself, just the concept of name image like, it comes out of the right of publicity.
It comes out of the inherent right that we all have to our name, image and likeness and to prevent other people from exploiting our name, image and likeness for money.
It's not really a new concept at all. It has existed for about 100 years, but in college sports, for one, because it's new and kind of has been given this NIL moniker.
It is something that is very kind of new and very kind of fresh.
But the way it's kind of manifested in college sports, because the NCAA hasn't allowed direct pay from universities to student-athletes.
Collectives have kind of stepped in where, and this is exactly what the NCAA is trying to pare down on, trying to push back against, and in the House settlement allow them to, some regards, to be able to do this is kind of these fake NIL deals.
That's how they would describe it, you're getting paid $500,000 to do a few tweets. In their eyes, it's not fair market value. It's not, it's not real. It's not something that's kind of legitimate.
When we think about NIL, I think about publicity. (…a student-athlete will get paid…) to do a commercial spot for any sort of brand.
For example, we have Select Health behind us, if a student-athlete were to do a deal with Select Health where they get paid for it, that is what they consider to be kind of this true NIL.
But when it's kind of funneled through Collectives, the role of the student-athlete, in those cases, would be to promote the Collective, which is kind of circular in a weird little way, that's what the NCAA is trying to push back against.
On how much of this did he see coming at the beginning of his career?
It's kind of an interesting thing.
When I was getting my PhD at Florida State in sport management, I did my dissertation on the history of legal challenges to the NCAA over amateurism rules, eligibility rules and all that.
And the way I like to describe it, and I think a good way of thinking about it, it was like, kind of a huge amount of water kind of pushing against the dam, where there was all this pressure built up, there's all this there's all this momentum built up, where we had, for example, the O'Bannon case back in 2015 and similarly, we also had the Keller and the Hart cases, which were right up publicity cases, intellectual property cases that looked at the NCAA Football video games, and NCAA basketball video games.
Well, you know, the fact that these student-athletes aren't getting paid for this, and it's a commercial thing for the NCAA that feels under antitrust law, and in a lot of other ways, kind of fundamentally wrong. And all of that really kind of built up.
It gave this momentum leading into Alston, i.e., when the NCAA appealed to the Supreme Court.
The NCAA got what they saw as an unfavorable decision at the Ninth Circuit, and they felt that the Supreme Court was going to rule in their favor, and the Supreme Court was going to protect amateurism rules from antitrust scrutiny.
And there's a lot of talk around that time.
It's like, are they right? And in fact, the NCAA
This was in response to the California fair pay to play act in 2019 that said, we're going to force our schools to allow NIL to allow players to profit off their damage like this, the NCAA had set up all these guard rails, and they had said, we are going to be able to do this.
We're going to do this on our own terms. We're going to do this in a way that we feel is okay, and the Alston decision is going to support us.
We're going to win the Alston case. We're going to be able to have protections from antitrust law and move forward from there.
And then the NCAA lost nine out of which that definitely threw a wrench into their plans.
It was one of those things where the decision was released on a very busy day, on June 21, 2021 and the first wave of state laws were set to come into effect on July 1, 2021 so they had about 10 days to react, they apparently never thought they were going to lose that case.
They had about 10 days to react.
They reacted as much as they could by essentially saying, "everything we had planned before is no longer legally defensible. We need to pare this back, and that's what's really led to all the different lawsuits, just a whole tidal wave of lawsuits.
…and the dam broke.
On what major changes he expects to see within the NCAA, or within collegiate sports in general, as related to this field,
I think there's going to be a major split between schools that want to participate in revenue sharing, that want to be more of a business environment, that want to be more of a commercial enterprise, and the schools that want to go back and at least as much as they can, keep amateur status.
And there's going to be a split there, and there already kind of is like we have D-II and we have Division-III. Neither of those divisions are as affected by all this.
Some of these athletes have NIL deals. Some of these schools have collectives, but they're not raising millions of dollars. They're not paying their athletes millions of dollars, or even hundreds or thousands of dollars.
It resembles what we saw before 2021 what we saw before this NIL era.
But at the D-I level, there's really a wide discrepancy between schools that want to to pay their student-athletes, want to have kind of this more quasi professional environment and compete to win, and schools that are kind of looking at this and saying, Well, wait a minute, we can't afford to be at this level anymore.
We can't afford to do this anymore.
In fact, just earlier today, we got the breaking news that St. Francis University has dropped from D-I.
https://www.francis.edu/blog/saint-francis-university-announces-move-ncaa-division-i-athletics-division-iii-athletics
Literally, two weeks ago, they're playing in the First Four. They were playing in the NCAA Tournament.
Now they know they're going to be Division-III because they felt like this revenue sharing environment, they just wouldn't be able to compete.
They weren't worth it to them to do that, and just their mission.
What they saw in their role, the role of their athletic department, is much more resembling that amateurism model, that intercollegiate sports model, rather than the front porch of the university.
I think that's gonna play out in a lot of different ways.
I think it's going to play out where we're starting to see and, you know, I would imagine, you know, I certainly wasn't in the room for this, but I would imagine a big part of our move to the PAC 12 was to say we want to compete with the big boys.
We want to be on the quasi-professional side of this.
I think that's a big part of why we're establishing BroncoPRO.
But I think that's a signal.
And I think all that is a signal when, when Jeremiah talks about being with like-minded institutions in the Pac 12, that's what they're talking about.
They want to be on one side of the line when that split eventually happens?
On information fans really need to know as they start to look at the next calendar year.
Well, one thing is just to be continued, like one thing that I've been watching, and one thing that I've found absolutely fascinating is the other dam that's building, a lot of legal pressure in this area, when it comes to eligibility rules.
So, when it comes to the NCAA five-year rule, where you can play five years, including a red-shirt year, and there's all these different exceptions to it, there's all these different waivers to it, that rule is under attack.
That rule is very much under attack, and it'll be really interesting to see what the result of all that is.
We have the Diego Pavia case, for example, back in December, where the court ruled that Pavia, by virtue of having junior college years, can't be considered college years.
https://apnews.com/article/vanderbilt-diego-pavia-suing-ncaa-541a9dcd33815a9c006ee42dd9f4819b
It can't be kind of put up against Division-I years.
He was going to get an extra year at Vanderbilt, and we've seen a bunch of other legal challenges right after that, kind of similar things as well.
(Nyzier) Fourqurean v NCAA also won his case.
And then you mentioned a baseball player before he might be talking about either carrier, Carrier Olita, who dropped his lawsuit, or Alberto Ozuna, who is still very much fighting his lawsuit.
That was a weird decision. We are going to need more information about this.
And then Dylan Goldstein in Georgia, who lost his lawsuit.
Well, I mean, looking at the case law before Alston, these are not commercial rules.
These are not rules that are impacted by antitrust law and shouldn't be impacted by antitrust law.
And a lot of courts right now are saying, well, wait a minute, we have NIL now this is a different environment.
We're talking about commercialism and college sports.
These rules now have a commercial tint to them, and that's going to be something to watch moving forward.
And the Pavia case is being appealed to the Sixth Circuit.
(Nyzier) Fourqurean v NCAA cases being appealed to the Seventh Circuit, and those decisions are going to be absolutely fascinating and going to really make a lot of impact when it comes to the future of the NCAA governance and college sports.
In other cases he is following closely.
Well, one that broke last night, actually one that, I mean, not necessarily broke.
It was filed a few years ago.
But one really interesting one, Fontenot v. the NCAA, District of Colorado, was a case that was kind of set up as kind of the other house cases or the other Carter case.
https://apnews.com/article/ncaa-compensating-athletes-2bab78e8f1a2976ce77aeae54ee5b0eb
https://www.fosterswift.com/communications-College-Athlete-NIL-Litigation.html
Really, very prominent attorneys like Kessler and Merman are incredibly prominent attorneys. They've been in this space for a while.
The attorneys in the Fontenot v. NCAA case negotiated a massive class action set up with Major League Baseball for minor league baseball players.
They just came to terms yesterday at a different case on a $46.5 million settlement with the NCAA for volunteer baseball coaches.
Smart et al. v. National Collegiate Athletic Association
https://www.classaction.org/news/49.25-million-ncaa-settlement-reached-in-baseball-coach-antitrust-lawsuit
They have experience in this area, and they are, what they did is they kind of transformed this lawsuit to kind of the other side of house, to now we are setting ourselves up as all the players who are opting out of house who say, whatever the house settlement calculations are for their damages aren't enough, aren't what they feel their value is.
We're going to include those athletes in this lawsuit. They consolidated with a different lawsuit that was going on, and looking at some of the names that were added last night, and they filed a new amended complaint that kind of set themselves up to be, if the house settlement is approved, they're going to go after more for more damages. If the house settlement is rejected, they're going to push for class action settlement, or class action status, and look to pick up where House left off.
And some of the names that are in that amended complaint are really fascinating, because they have a lot of value. Trey Lance is in there, former South or North Dakota, North Dakota State quarterback who played for the 49ers and Cowboys. He was the first one. Major League Baseball players, NFL quarterbacks, and NBA players are in it. So that's going to be an interesting one to follow.
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About Sam C. Ehrlich, J.D., Ph.D.
Sam practiced as a sports agent consultant and immigration attorney before pursuing and earning his Ph.D. in sport management at Florida State University.
He joined the Boise State University Department of Management in 2020.
His research examines legal aspects of the sports industry, specifically focusing on issues in student-athlete fairness in collective bargaining and employment, the unique application of antitrust law to sports, and Constitutional issues with restrictions on college athletes' name, image, and likeness.
Sam teaches courses in the legal environment of business, business ethics, and negotiation.
He has published articles in several journals including the Columbia Journal of Law and the Arts, the Journal of Sport Management, and the Journal of Legal Aspects of Sport.
Sam C. Ehrlich, Assistant Professor, Legal Studies in Business, Management in the College of Business and Economics at Boise State, shares the latest on the House settlement and the impact on college athletics.
The following transcription is edited.
On how he got interested in sports and sports litigation.
I've always been interested in the behind the scenes of sports. I've really found all that stuff fascinating. In fact, going back when I was growing up, July 31 was always my favorite day on the calendar for two reasons. One, it was the baseball trade deadline and it was always really fun to track all that and see what's going on and then two, which was secondary, it was my birthday. So that's a good day, my birthday and the trade deadline. But all that stuff always fascinated me.
So, when I went to college, I was able to go to the University of Massachusetts and their amazing Sports Management program.
I got my bachelor's in Sport Management from UMass and then went to law school to focus on sports law. When I was at UMass, I got a chance to take a sports law class with professor Glenn Wong, who is one of the titans in the sports law field, and I just loved every second of it. I was a research assistant with him which led to an internship with the New York Jets.
I was always interested in the legal aspects of sports, behind the scenes, and the way college sports and the law interacts because it is so radically different from how the law interacts with traditional business in a lot of really interesting ways.
On how the College Sports Litigation Tracker began.
The College Sports Litigation Tracker is a non-profit, subscription-less venture made mostly to help Professor Ehrlich keep track of all of the legal chaos surrounding the NCAA in the post-Alston world, as much of his research is focused around the legal aspects of college sports and these emerging cases.
I was talking with my good friends and fellow professors, Joe Sabin at Southeast Louisiana and Neil Turner at Northern Illinois, and various journalists, and we agreed it would be nice to have a website with access to all the legal documents against the NCAA, especially since the Supreme Court's decision on Alston, to track the tangential cases that are shifting college sports in so many different radical ways.
On how the House v NCAA affects college sports today.
The House v NCAA is a class-action antitrust suit against the NCAA and its conferences and seeks to revamp how the NCAA operates.
The House settlement is a legal settlement to class action settlement that looks for the NCAA to settle three different cases; three antitrust cases that have challenged three different areas of NCAA rules.
House v NCAA
Hubbard v NCAA
Carter v NCAA
Defining antitrust law as it relates to the NCAA.
The NCAA, through its amateur rules (status), has restricted the competition for college athlete labor. The NCAA has pushed down the prices of college athlete labor by restricting NIL, at least until House is approved not allowing universities and colleges to pay athletes directly for things like broadcast and NIL.
And just generally speaking the amateurism rules that the plaintiffs have argued that, but for these amateurism rules, but for this concept of amateurism,
College athletes would be able to get paid and be able to get paid handsomely, which is something that we're seeing now, in this new market.
So, the house settlement settles these three cases in two different ways.
The first way is through back damages, where athletes from 2016-20 to when the health settlement was approved will get money in terms of back damages from a pool of $2.576 billion dollars, so a healthy amount of money.
And the second area is through what we call in the law, injunctive relief, where essentially the court is going to impose through the settlement, this injunction, this court order that will force the NCAA through their agreement to make certain rule changes, i.e., revenue sharing, roster limits and third party NIL.
And these rule changes will be one allowing for revenue sharing, where universities can share revenue, or pay their student-athletes directly up to a cap of 20%. Right now between the P5 schools and Notre Dame, I would say it's approximately $20.5 million per year.
Two will be through kind of the inflammation of roster limits, which will replace scholarship limits.
For example, in football, you could have up to roughly 130 football players, including a number of walk-ons, but only have 85 scholarships. Now it's going to be a straight 105 roster and 105 scholarships.
You can have scholarships up to the roster cap, instead of having an arbitrary number below that, that limits how many scholarships you can give.
So that's the roster limit part of it.
- And then finally, the NCAA would be empowered to enforce third party NIL rules, restrictions on student-athletes being able to get third party NIL that would restrict booster payments, i.e., payments they consider associated entities and individuals, and make it so that those deals have to be one for fair market value and two for a valid business purpose.
So those three injunctive rule changes are the light switch that's going to be flipped on April 7, the day of the final hearing on House v NCAA.
On what Bronco fans can expect on April 7.
It'll be interesting. It's one of those things where when we're talking about class action settlements, we're talking about a standard that it has to be fair and reasonable to everyone in the class.
And there's a number of arguments saying this, i.e., the settlement isn't fair and reasonable, the settlement sets an arbitrary cap on revenue sharing, etc.
Why are we limiting it to $20.5 billion? Why aren't we having kind of a broader free market overall?
The roster limits have been a huge source of concern for a lot of people, because it's really kind of pushing universities, pushing athletic departments to be able to cut a number of players to get down to those newer roster limits, which, in a lot of cases are smaller and are less fluid than you know we you'd be able to have walk ons beyond those numbers now you can't.
And there's really just, again, just a lot of objections to the settlement. There's going to be, I think, 11 witnesses testifying, saying on April 7 that the House shouldn't have been approved.
But it's one of those things where it's in the hands of one person, Judge Claudia Wilkin, U.S. District Court of Northern California. She's going to be the one who decides whether she feels it's very reasonable.
Due to the amount of interest, judge Claudia Wilken will hold a final settlement hearing in the class-action case House v. NCAA across two sprawling courtrooms. If approved, as most expect, it will usher in a revolutionary change to how athletic departments operate and is poised to be the biggest refashioning of college sports since a landmark 1984 Supreme Court decision paved the way for television to become ever more ubiquitous for schools and conferences.
There might be appeals after that, but it's really going to be in her hands. It's going to be up to her to decide.
But based on the preliminary approval hearing that we had several months ago, and kind of the way she handled some of those objections back then, I would expect it to be approved.
It may be something where she kind of pushes the parties to make a few changes, but I would expect it to be approved.
On whether the revenue sharing era will begin on April 7.
I think that's fair to say. I think that it's really a good way of putting it, because once that settlement is approved, whether it's on April 7, or maybe a few days later or a couple weeks later, that's going to kick off revenue sharing.
And even if the settlement isn't approved, there are some rumors out of the NCAA, some thoughts out of the NCAA.
And honestly, I think it makes sense, given how schools have kind of geared up for revenue sharing already.
I would imagine the NCAA, even if the off chance of settlement isn't approved, which is possible, it could happen, but if it isn't approved, we're probably going to see some form of revenue sharing anyway.
The bottom line remains that for the first time starting this fall, just about every major program will be directly paying players some form of compensation beyond the typical scholarships and associated awards they normally receive.
On the current formula in place for revenue sharing.
The formula for revenue sharing is based on what Kessler and Berman, the two lead attorneys for the plaintiffs outlined, their end-goal.
Kessler is a big collective bargaining guy, a big labor law guy.
He's represented the NFLPA, the NBAPA, the MLBPA, all these different unions and collective bargaining agreements and collective bargaining disputes.
If you follow collective bargaining disputes between the professional sports and their unions, there's always a goal to have a 50/50 revenue split.
We want to have a split between revenue, between the teams and the players of roughly 50/50 and sometimes it's a little malleable, but that's really the goal here.
So, the way that Kessler and Berman really approached this, from what they've been saying and what they've written in their various briefs, defending the settlement, is they're looking to have this 50/50 split.
So, the way they calculated, and the way that Daniel Rascher their expert witness economist, calculated it is that when you include not only the revenue sharing, the 20% revenue sharing that is going to going to be allowed along with scholarships and other benefits that college athletes receive, that whole collaboration, the cost of all that will equal roughly a 50/50, split.
On how school collectives differ from the house settlement and how it will affect those NIL collectives in the future?
Well, it's kind of an interesting thing, because NIL has really morphed into something entirely, strange, and something that is very like NIL in itself, just the concept of name image like, it comes out of the right of publicity.
It comes out of the inherent right that we all have to our name, image and likeness and to prevent other people from exploiting our name, image and likeness for money.
It's not really a new concept at all. It has existed for about 100 years, but in college sports, for one, because it's new and kind of has been given this NIL moniker.
It is something that is very kind of new and very kind of fresh.
But the way it's kind of manifested in college sports, because the NCAA hasn't allowed direct pay from universities to student-athletes.
Collectives have kind of stepped in where, and this is exactly what the NCAA is trying to pare down on, trying to push back against, and in the House settlement allow them to, some regards, to be able to do this is kind of these fake NIL deals.
That's how they would describe it, you're getting paid $500,000 to do a few tweets. In their eyes, it's not fair market value. It's not, it's not real. It's not something that's kind of legitimate.
When we think about NIL, I think about publicity. (…a student-athlete will get paid…) to do a commercial spot for any sort of brand.
For example, we have Select Health behind us, if a student-athlete were to do a deal with Select Health where they get paid for it, that is what they consider to be kind of this true NIL.
But when it's kind of funneled through Collectives, the role of the student-athlete, in those cases, would be to promote the Collective, which is kind of circular in a weird little way, that's what the NCAA is trying to push back against.
On how much of this did he see coming at the beginning of his career?
It's kind of an interesting thing.
When I was getting my PhD at Florida State in sport management, I did my dissertation on the history of legal challenges to the NCAA over amateurism rules, eligibility rules and all that.
And the way I like to describe it, and I think a good way of thinking about it, it was like, kind of a huge amount of water kind of pushing against the dam, where there was all this pressure built up, there's all this there's all this momentum built up, where we had, for example, the O'Bannon case back in 2015 and similarly, we also had the Keller and the Hart cases, which were right up publicity cases, intellectual property cases that looked at the NCAA Football video games, and NCAA basketball video games.
Well, you know, the fact that these student-athletes aren't getting paid for this, and it's a commercial thing for the NCAA that feels under antitrust law, and in a lot of other ways, kind of fundamentally wrong. And all of that really kind of built up.
It gave this momentum leading into Alston, i.e., when the NCAA appealed to the Supreme Court.
The NCAA got what they saw as an unfavorable decision at the Ninth Circuit, and they felt that the Supreme Court was going to rule in their favor, and the Supreme Court was going to protect amateurism rules from antitrust scrutiny.
And there's a lot of talk around that time.
It's like, are they right? And in fact, the NCAA
This was in response to the California fair pay to play act in 2019 that said, we're going to force our schools to allow NIL to allow players to profit off their damage like this, the NCAA had set up all these guard rails, and they had said, we are going to be able to do this.
We're going to do this on our own terms. We're going to do this in a way that we feel is okay, and the Alston decision is going to support us.
We're going to win the Alston case. We're going to be able to have protections from antitrust law and move forward from there.
And then the NCAA lost nine out of which that definitely threw a wrench into their plans.
It was one of those things where the decision was released on a very busy day, on June 21, 2021 and the first wave of state laws were set to come into effect on July 1, 2021 so they had about 10 days to react, they apparently never thought they were going to lose that case.
They had about 10 days to react.
They reacted as much as they could by essentially saying, "everything we had planned before is no longer legally defensible. We need to pare this back, and that's what's really led to all the different lawsuits, just a whole tidal wave of lawsuits.
…and the dam broke.
On what major changes he expects to see within the NCAA, or within collegiate sports in general, as related to this field,
I think there's going to be a major split between schools that want to participate in revenue sharing, that want to be more of a business environment, that want to be more of a commercial enterprise, and the schools that want to go back and at least as much as they can, keep amateur status.
And there's going to be a split there, and there already kind of is like we have D-II and we have Division-III. Neither of those divisions are as affected by all this.
Some of these athletes have NIL deals. Some of these schools have collectives, but they're not raising millions of dollars. They're not paying their athletes millions of dollars, or even hundreds or thousands of dollars.
It resembles what we saw before 2021 what we saw before this NIL era.
But at the D-I level, there's really a wide discrepancy between schools that want to to pay their student-athletes, want to have kind of this more quasi professional environment and compete to win, and schools that are kind of looking at this and saying, Well, wait a minute, we can't afford to be at this level anymore.
We can't afford to do this anymore.
In fact, just earlier today, we got the breaking news that St. Francis University has dropped from D-I.
https://www.francis.edu/blog/saint-francis-university-announces-move-ncaa-division-i-athletics-division-iii-athletics
Literally, two weeks ago, they're playing in the First Four. They were playing in the NCAA Tournament.
Now they know they're going to be Division-III because they felt like this revenue sharing environment, they just wouldn't be able to compete.
They weren't worth it to them to do that, and just their mission.
What they saw in their role, the role of their athletic department, is much more resembling that amateurism model, that intercollegiate sports model, rather than the front porch of the university.
I think that's gonna play out in a lot of different ways.
I think it's going to play out where we're starting to see and, you know, I would imagine, you know, I certainly wasn't in the room for this, but I would imagine a big part of our move to the PAC 12 was to say we want to compete with the big boys.
We want to be on the quasi-professional side of this.
I think that's a big part of why we're establishing BroncoPRO.
But I think that's a signal.
And I think all that is a signal when, when Jeremiah talks about being with like-minded institutions in the Pac 12, that's what they're talking about.
They want to be on one side of the line when that split eventually happens?
On information fans really need to know as they start to look at the next calendar year.
Well, one thing is just to be continued, like one thing that I've been watching, and one thing that I've found absolutely fascinating is the other dam that's building, a lot of legal pressure in this area, when it comes to eligibility rules.
So, when it comes to the NCAA five-year rule, where you can play five years, including a red-shirt year, and there's all these different exceptions to it, there's all these different waivers to it, that rule is under attack.
That rule is very much under attack, and it'll be really interesting to see what the result of all that is.
We have the Diego Pavia case, for example, back in December, where the court ruled that Pavia, by virtue of having junior college years, can't be considered college years.
https://apnews.com/article/vanderbilt-diego-pavia-suing-ncaa-541a9dcd33815a9c006ee42dd9f4819b
It can't be kind of put up against Division-I years.
He was going to get an extra year at Vanderbilt, and we've seen a bunch of other legal challenges right after that, kind of similar things as well.
(Nyzier) Fourqurean v NCAA also won his case.
And then you mentioned a baseball player before he might be talking about either carrier, Carrier Olita, who dropped his lawsuit, or Alberto Ozuna, who is still very much fighting his lawsuit.
That was a weird decision. We are going to need more information about this.
And then Dylan Goldstein in Georgia, who lost his lawsuit.
Well, I mean, looking at the case law before Alston, these are not commercial rules.
These are not rules that are impacted by antitrust law and shouldn't be impacted by antitrust law.
And a lot of courts right now are saying, well, wait a minute, we have NIL now this is a different environment.
We're talking about commercialism and college sports.
These rules now have a commercial tint to them, and that's going to be something to watch moving forward.
And the Pavia case is being appealed to the Sixth Circuit.
(Nyzier) Fourqurean v NCAA cases being appealed to the Seventh Circuit, and those decisions are going to be absolutely fascinating and going to really make a lot of impact when it comes to the future of the NCAA governance and college sports.
In other cases he is following closely.
Well, one that broke last night, actually one that, I mean, not necessarily broke.
It was filed a few years ago.
But one really interesting one, Fontenot v. the NCAA, District of Colorado, was a case that was kind of set up as kind of the other house cases or the other Carter case.
https://apnews.com/article/ncaa-compensating-athletes-2bab78e8f1a2976ce77aeae54ee5b0eb
https://www.fosterswift.com/communications-College-Athlete-NIL-Litigation.html
Really, very prominent attorneys like Kessler and Merman are incredibly prominent attorneys. They've been in this space for a while.
The attorneys in the Fontenot v. NCAA case negotiated a massive class action set up with Major League Baseball for minor league baseball players.
They just came to terms yesterday at a different case on a $46.5 million settlement with the NCAA for volunteer baseball coaches.
Smart et al. v. National Collegiate Athletic Association
https://www.classaction.org/news/49.25-million-ncaa-settlement-reached-in-baseball-coach-antitrust-lawsuit
They have experience in this area, and they are, what they did is they kind of transformed this lawsuit to kind of the other side of house, to now we are setting ourselves up as all the players who are opting out of house who say, whatever the house settlement calculations are for their damages aren't enough, aren't what they feel their value is.
We're going to include those athletes in this lawsuit. They consolidated with a different lawsuit that was going on, and looking at some of the names that were added last night, and they filed a new amended complaint that kind of set themselves up to be, if the house settlement is approved, they're going to go after more for more damages. If the house settlement is rejected, they're going to push for class action settlement, or class action status, and look to pick up where House left off.
And some of the names that are in that amended complaint are really fascinating, because they have a lot of value. Trey Lance is in there, former South or North Dakota, North Dakota State quarterback who played for the 49ers and Cowboys. He was the first one. Major League Baseball players, NFL quarterbacks, and NBA players are in it. So that's going to be an interesting one to follow.
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Follow Sam C. Ehrlich
https://x.com/samcehrlich
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About Sam C. Ehrlich, J.D., Ph.D.
Sam practiced as a sports agent consultant and immigration attorney before pursuing and earning his Ph.D. in sport management at Florida State University.
He joined the Boise State University Department of Management in 2020.
His research examines legal aspects of the sports industry, specifically focusing on issues in student-athlete fairness in collective bargaining and employment, the unique application of antitrust law to sports, and Constitutional issues with restrictions on college athletes' name, image, and likeness.
Sam teaches courses in the legal environment of business, business ethics, and negotiation.
He has published articles in several journals including the Columbia Journal of Law and the Arts, the Journal of Sport Management, and the Journal of Legal Aspects of Sport.
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