What's holding up House v. NCAA? College athletics hinges on decision from judge with a meticulous reputation
On April 7, lawyers stood before Judge Claudia Wilken for the final settlement hearing in the historic House v. NCAA case. Many arrived expecting Wilken to accept the settlement's final approval and officially kick off the revenue-sharing era of college athletics.
Wilken ultimately expressed a few qualms, most notably a transition period for roster limits. If those were resolved, she seemed optimistic that she could rubber stamp the settlement.
"Basically, I think it's a good settlement," Wilken said at the hearing. "Don't quote me. I think it's worth pursuing and I think some of these things can be fixed if people tried to fix them."
Two months later, college athletics still waits.
Even those intimately involved in the proceedings are at a loss. For instance, a Big Ten Conference official told CBS Sports they expected a resolution on May 20. An ACC administrator thought Friday, May 30. An NCAA executive checked his watch during a conversation with CBS Sports because Wilken has released multiple decisions on Friday evenings. A few lawyers involved in the case have a betting pool guessing when it will finally drop. All are losers so far.
"There's a lot of angst, man, and you guys can probably feel it," Texas A&M athletic director Trev Alberts said. "It's at the commissioner level, the president's level, the coaches' level."
Another source joked that if Wilken really wanted to mess with athletic administrators, she would render her final decision during next week's National Association of Collegiate Directors of Athletics conference, while many athletic department heads are in attendance in Orlando rather than working on their respective campuses. During a time that should be a relative respite for athletic administrators, the impending settlement has them stuck in purgatory.
In the lawsuit's original language, the two sides had only until June 6 to finalize the settlement, or the case would go to trial. On Monday, Wilken granted a motion to extend that deadline to June 27. That comes just four days before administrators expect to start revenue sharing with athletes on July 1.
"I learned a long time ago, we don't control the court system," SEC commissioner Greg Sankey said. "So, is there a hope? Is there a thought? Do people say it would be decided at this point? Yes. We have a responsibility for implementation. So does it pivot what we say this week? Yep. Does it mean we're going to keep preparing? We're going to keep preparing and we're going to wait to see the judge's final decision on the proposed settlement."
Wilken, 75, is now one of the most important people in the history of college athletics. The senior district judge of California's Northern District was named to the federal bench in 1993 by President Bill Clinton. She works out of Oakland, California. Because of her location, she has overseen cases involving some of the world's largest retail and tech companies.
Her first foray into major college athletics came in 2014, when she presided over the landmark O'Bannon v. NCAA lawsuit, which most consider the beginning of the end for the NCAA's amateurism model. In the O'Bannon case, Wilken ruled that withholding payments to athletes was against antitrust law and expanded scholarships to cost-of-attendance.
Years later, she also presided over the the NCAA v. Alston case, which expanded permissible educational benefits to include cost-of-living stipends. Both of Wilken's decisions were later upheld by the Supreme Court, setting off another flurry of lawsuits that helped shape the unregulated morass that college athletics faces today.
"She's an intellectual," former clerk Helen Moore said in a 2014 New York Times profile. "A lot of cases present interesting intellectual issues, and that really piques her interest. She wants to hear both sides, and she really thinks deeply about both sides. The attorneys on both sides will cite case law to support their arguments, and she gets her clerks hopping, researching all the case law being cited."
However, the federal judiciary is built to focus on precision, not speed. Wilken has been clear that she's unbothered by the July 1 deadline that athletic administrators are hoping to target. In a brief filed April 23, Wilken was unmoved by the schools' plight, writing that "any disruption that may occur is a problem of Defendants' and NCAA members schools' own making."
The final arguments in the O'Bannon case were filed on July 10, 2014. She did not rule for nearly a month, on Aug. 8, 2014. The Alston case was argued in September 2018. She did not issue her 100-page opinion until almost six months later in March 2019.
Lawyers speculate that the extension is a positive sign. If she approves the settlement, it won't be long until there are appeals. Writing airtight legal language is critical. If she were to deny the settlement, it's not appealable. There's less urgency to write a detailed decision.
"We need to have certainty because we went from a land of certainty to no certainty, and we're desperate for that and I am very thoughtful," Texas athletic director Chris Del Conte said. "I'm hopeful in her deliberate response that she's taking this time, because the ramifications of this case are just completely changing our environment. I'm not as worried about that, but I'm just hoping that's with her delay."
A coming deadlineWhile Wilken is not beholden to the July 1 deadline, it remains a critical date for college athletics. It's the beginning of the new academic year, making it a logical transition point logistically for college athletics to implement the new system. It's the official date when many teams moving conferences join their new leagues and the month when football programs begin training camps.
All of the uncertainty has hit at a time when athletic departments are typically in the midst of turning the page to next year, instead they're still scrambling.
"You're running so many different trap doors right now because you're working on so many different fronts," Florida state athletic director Michael Alford told CBS Sports. "My budgets were due [in April]. I'm running three different budgets depending on how [the] House [case] goes. We're preparing a budget for the beginning of the school year in July, so you're trying to figure out what that means and where it's going to land.
"You've run all these scenarios, and then you're looking at rosters with your coaching staffs, and you're trying to prepare for that -- running different scenarios on 'grandfathered in' clause (and) what the roster limit means. So right now, you're just doing triple, quadruple the work going into the school year, because you don't know the final answer. You can predict and get decision trees made, but you have a lot of decision trees as you go through this process."
But perhaps most pertinent, numerous programs have signed revenue-sharing deals with college athletes that are contingent on the House settlement's approval. The NCAA announced it will eliminate 150 rules to allow schools to pay athletes directly, contingent on approval. Rosters have been purged and employees have been laid off to prepare for the new financial realities. The past 12 months have all been spent preparing for this moment.
Regardless of whether the House case is settled, the belief remains that schools will voluntarily begin sharing revenue on July 1 -- everyone is too far in. However, if that happens without a settlement, it will mean almost every guardrail to standardize the system will not apply.
The settlement plans to set a salary cap of approximately $20.5 million. It forces all NIL contracts to go through a Deloitte clearinghouse called NIL Go to ensure fair market value. The upcoming College Sports Commission, which plans to hire a CEO, will not be created. Without those measures, there's no legally enforceable way to regulate player compensation.
"If they don't pass it, I'll be hitting every college up on Aug. 1 demanding new contracts," one NIL agent told CBS Sports.
Meanwhile, schools have developed contingencies should the settlement be denied, but some have not shared those plans with their conferences or fellow schools, sources told CBS Sports. The clandestine operation promises more competitive imbalance as some schools opt to pay athletes and others pull back on their efforts to save costs.
Should the settlement be approved, unlimited scholarships will be allowed under new roster limits. Not all schools will fully fund those scholarships, however. The SEC has required its members to set aside $2.5 million of its $20.5 million cap for new scholarships.
Revenue sharing will also not benefit every sport. For example, Texas A&M and Oklahoma plan to share revenue with six sports at their schools. Both schools declined to disclose which six programs would benefit from an influx of cash to players in a perceived effort to gain an advantage over rivals who may choose to direct their cash flow elsewhere in programs that are less competitive.
Even in a new world of regulation and guardrails designed to benefit players and level the playing field, every school is still looking for a competitive advantage.
As the clock ticks toward July 1, one administrator summed it up best in a college sports landscape that is continually building the plane as it's in midair.
"Nothing like implementing truly fundamental change in less than four weeks."
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