Female athletes to appeal $2.8B NCAA settlement over Title IX claims

An attorney for four collegiate tennis and lacrosse players said Tuesday they will appeal, on Title IX grounds, the historic $2.8 billion antitrust settlement allowing Division I college athletes to be paid for their likenesses. The plaintiffs claim that only 4% of the money, meant to compensate for past NIL damages, will go to women.

U.S District Judge Claudia Wilken of Oakland finalized the two related class action settlements on Friday after the parties revised one of the agreements, known as the House case, four times to address Wilken's concerns about roster limit provisions. In re: College Athlete NIL Litigation, 4:20-cv-03919 (N.D. Cal. filed June 15, 2020).

The House case settled for $2.57 billion while the related Hubbard case settled for $200 million. The money was split into funds, designed to compensate current and former student athletes who played college sports between 2016 and 2024 and would have earned money for their school's use of their name, image and likeness (NIL) but for the NCAA's old regulations.

Leigh Ernst Friestedt, founder of Equity IX LLC in New York City who filed objections to damages calculations of the House settlement on behalf of the four women athletes, said in an email Tuesday that her clients will appeal the House agreement "on behalf of millions" of women.

"I can confirm that all four of my clients will be appealing Judge Wilken's final approval of the House settlement based on Title IX of the Education Amendments of 1972," the email stated. "The House settlement allocates $2.4 billion to men and only $102 million to women. This significant disparity constitutes a violation of Title IX. Charlotte, Mai, Katherine and Brooke look forward to the opportunity to appeal this decision with the 9th Circuit on behalf of millions of female student-athletes."

Jeffrey Kessler, co-executive chairman of Winston & Strawn LLP in New York City and co-lead class counsel, pushed back in an email Tuesday.

"These Title IX claims were considered and rejected by the district court in a well-reasoned opinion," Kessler wrote. "An appeal is only going to hurt the more than 100,000 college athletes who are waiting for their damages payments as the distribution of such payments will be delayed by any appeal. This is an antitrust settlement, not a Title IX litigation."

Friestedt's clients previously argued in their objections that class counsel did not "adequately represent the female sub-class," pointing to the plaintiffs' "fundamentally flawed" damages model and the settlement's Title IX release provisions.

The plaintiffs' damages expert calculated all damages in the case under a "but for" concept, writing in his Jan. 23 report, "But for the NCAA's restraints, athletes would receive (or would have received) higher compensation in the labor market through opportunities for NIL deals."

In her June 6 order, Wilken addressed the concerns from objectors that female class members are unfairly under-compensated by the settlement terms writing, "The court has found that plaintiffs' damages allocations are fair and reasonable to all damages class members, and that they have an adequate basis in the economics analyses of Dr. Rascher, which reflect the extent of class members' injuries and the strength of their claims based on what class members would have received for their claims in the but-for world."

Lead attorneys for the NCAA and its conferences, Rakesh N. Kilaru of Wilkinson Stekloff LLP and Jacob K. Danzinger of ArentFox Schiff LLP, could not be reached for comment Monday but have routinely defended the settlement as fair.

In the immediate aftermath of the combined settlement's final approval, and prior to Tuesday's appeal announcement, attorneys throughout the state warned that appeals and other litigation challenging the settlement would begin flooding courts.

Brandon Leopoldus, founder of the sports law firm Leopoldus Law APC in Culver City, said in a phone interview Monday that the settlement "is not the end; it's the beginning."

Leopoldus represents current college and high school athletes in a litany of NIL-related issues. He noted that budget cuts, likely to be implemented as schools prepare to make annual direct payments to athletes, totaling no more than $20.5 million, could result in Title IX violations.

"You're going to have a ton of Title IX claims because the sports that are getting cut are these so-called non-revenue sports ... We're seeing some athletic directors that are trying to really do their best," he said. "These are good people. I don't think anybody here is the evil, wicked stepmother. ... If they're going to put 75%-80% of the budget towards football, and give penance to women's college basketball, everybody else has to kind of do with what they can. That's problematic."