When the N.C.A.A. and the nation’s marquee athletic conferences agreed in May to settle an antitrust lawsuit with a group of athletes, it was viewed as a landmark development that would usher in a new era of college sports in which schools could pay their athletes big money for their talents.
As the parties in the suit, House v. N.C.A.A., laid out details of the agreement, complaints came largely from the smaller schools that had been cut out of the negotiations and were being required to subsidize more than a third of cost of the proposed $2.8 billion settlement.
Now, just over three months later, as a judge prepares to weigh more arguments at a remote hearing on Thursday on whether to grant preliminary approval to the 300-plus page settlement, those early voices of dissent have largely been quieted. Instead, the protests now come from an unlikely source: a raft of athlete advocates who are urging the judge, Claudia A. Wilken of the Northern District of California, to send the parties back to the negotiating table.
Lawyers in another antitrust case have raised objections to the House deal. So has a former leader of the N.B.A. players’ union. Even an athlete who is one of the plaintiffs in the House case, the women’s basketball player Sedona Prince, expressed uneasiness amid her support of the deal.
The proposed settlement of the House lawsuit would for the first time establish a framework allowing schools to pay college athletes directly, essentially disposing of the amateur model of college athletics that has stood for more than a century. That model had begun crumbling in recent years as revenues from college sports soared into the billions and athletes began demanding compensation.
If the proposal is approved, schools could begin to spend more than $20 million a year to pay athletes as soon as a year from now, an amount that would rise with revenues. All athletes would automatically be opted into the deal unless they request to be removed. The agreement would also allow tens of thousands of football and basketball players to be paid retroactively for lost compensation from television and marketing rights. It could also bolster the N.C.A.A.’s ability to fend off further antitrust suits that have weakened the organization’s ability to regulate itself.
The latest detractors, though, say the deal would limit the money athletes could make and keep too much control over compensation in the hands of the N.C.A.A.
One of the most weighty objections came last week from Ramogi Huma, the executive director of the National Collegiate Players Association, who has spent more than two decades working against what he has called the exploitation of college athletes.
“It’s just a bad deal, plain and simple,” Mr. Huma said in a phone interview. He contends that it would allow the N.C.A.A., conferences and schools to collude to resist revenue sharing or collectives, the booster groups that currently funnel millions to college athletes at schools the collectives support.
In opposing the deal, Mr. Huma finds himself at odds with the lawyers Jeffrey Kessler and Steve Berman, two longtime stalwarts of the movement to pay athletes whom Mr. Huma worked with as an adviser in two other consequential cases about the issue. Those cases, were also adjudicated by Judge Wilken, whose rulings handed athletes narrow victories.
“We had high hopes that this would be a fair settlement and this lawsuit would bring forth more equitable conditions, whether through a settlement or court hearing,” Mr. Huma said. Now, he said, “it should be scrapped.”
One scenario Mr. Huma pointed to would allow the N.C.A.A. or conferences to restrict name, image and licensing agreements — such as a booster-run collective at the University of Utah last year facilitating a deal to give every football player a new truck. Mr. Huma said an athlete’s value to the school should be dictated by a free market, with any restraints coming through collective bargaining.
But in a phone interview on Tuesday, Mr. Berman emphasized that the settlement was a compromise and that “you can’t create a perfect world.” He also said Mr. Huma’s objection was not “born out of reality” because well-heeled schools have shown every indication that they will spend to the allowable limits.
Critics also say the settlement is too broad. The House case sought compensation for previous usages of athletes’ names, images and likenesses in broadcasts. The settlement folded in two other cases in which Mr. Kessler and Mr. Berman represented the plaintiffs. One of them, Hubbard v. N.C.A.A., challenges restrictions on educational payments to athletes. The other, Carter v. N.C.A.A., asserts that amateurism rules are an unfair restraint on athletes’ rights to be paid for their services. The plaintiffs’ lawyers say all three suits are of a piece.
One of the decisions before Judge Wilken is whether to fold a fourth lawsuit into the House settlement. That suit, Fontenot v. N.C.A.A., filed in Colorado several weeks before the Carter suit, argues that the N.C.A.A. illegally prohibits players from being paid for their abilities. The plaintiff’s lawyers say the House agreement comes up far short of what athletes are worth.
“We think it’s important to oppose the settlement in its current form because it does not adequately value the claims at issue,” said Garrett Broshuis, a lawyer for Alex Fontenot, one of the plaintiffs and a former University of Colorado football player. The lawyers for Mr. Fontenot will have the opportunity Thursday to make their case before Judge Wilken, along with lawyers for the N.C.A.A., the five major conferences and the House plaintiffs.
Among other figures opposing the agreement is David West, the former N.B.A. player and players’ union leader, who said in a court filing that college athletes had not been duly represented. On Wednesday, a group of gymnasts filed opposition to the deal, echoing a group of mostly crew team members who previously argued that the agreement violated Title IX, a federal law that bans sex discrimination.
Ms. Prince, a women’s basketball player at Texas Christian University and a plaintiff in the House and Carter cases, recently said in an interview with The New York Times that she was concerned the deal could result in too much money going to football and men’s basketball players and leave out women athletes, as well as Olympic athletes who compete in other sports like swimming, volleyball and track and field that do not generate nearly the same revenue.
“We should be viewed as shareholders in this multibillion industry,” said Ms. Prince, who nevertheless supports the settlement. “We’re the work force. We’re allowed to make our own decisions. I wish I could have had more of a say, even as a plaintiff, which is crazy to say.”
Michael LeRoy, a labor law professor at the University of Illinois, said the misgivings of Ms. Prince and the opposition of others have a common thread: that collegiate sports is a business, and the athletes are workers.
“The people who are pushing back are saying the same thing,” he said. “They see this as a backdoor way to settle a labor antitrust claim.”
One voice that has not often been heard over the last few months is that of Judge Wilken. She did, though, deliver one emphatic ruling in July, denying Houston Christian University’s standing to challenge the settlement. She said the school had two options: advocate within the N.C.A.A. to change the agreement terms or leave the N.C.A.A. (The university is appealing the decision.)
That ruling had a chilling effect on other conferences or schools that might have filed similar opposition, said Dan Butterly, the commissioner of the Big West Conference and the head of the Collegiate Commissioners Association, which represents the 22 conferences that do not have access to the College Football Playoff, the entity that organizes the postseason championship.
Whether she rules from the bench on Thursday or lays out clues from her questions in the hearing, there is likely to be a better understanding of where the settlement is headed — and which voices have Judge Wilken’s ear.
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