Top Q&As Related to the House Proposed Settlement

There are many important questions to consider on your campus regarding the House proposed settlement. Conferences and schools alike should consider (a) their priorities for athletics, including sport portfolio and student-athlete experience; (b) their strategic priorities in operating athletics programs within the overall institutional environment; (c) operating budgets; and (d) legal risks and considerations related to Title IX, labor and employment issues, and immigration. This is not an exhaustive list of considerations but a starting point for discussions, particularly for non-defendant conferences and schools considering whether to opt-in to the settlement.

Can Non-A5 schools partially opt in to the proposed settlement?

No. There is no partial opt in option. Schools can opt in immediately pending final approval or can wait and opt in at a later date. Currently it is not clear whether a school could opt in and later decide to opt out, but opting in would likely be challenging to undo.

Can schools opt in on a sport-by-sport basis?

No, schools cannot opt-in on a sport-by-sport basis. It’s all or nothing.

Is the House settlement subject to Title IX?

Title IX could be implicated in several ways. Broadly, institutions are required to comply with Title IX by (a) meeting one of the 3 prongs of participation opportunities; (b) providing proportional financial assistance; and (c) providing equal or equal in effect treatment in a number of areas (also known as the “laundry list” of benefits). Roster caps under the settlement could impact both the participation and financial assistance components. Other monetary and non-monetary benefits (e.g. cars) paid to student-athletes could implicate the financial assistance requirements. Other non-monetary benefits like acting as a marketing agent for SAs for NIL deals could lead to disparate treatment between the sexes in areas such as publicity, recruiting, and support services.

Has the House settlement been approved?

There is still a long way to go before the settlement is finalized. Multiple interested parties have expressed actual or potential disagreement with the proposed settlement. The plaintiffs in both Fontenot v. NCAA and Cornelio v. NCAA have formally asked the judge in House not to grant preliminary approval, arguing their claims should remain separate and not be preempted by a settlement they feel is unjust. Two other plaintiffs, Tamenang Choh and Grace Kirk, who are suing the Ivy League for refusing to offer athletic scholarships, have also filed formal objections to the House settlement, noting that opting into the House plaintiff class would force them to drop their claims against the conference. Additionally, one university (Houston Christian) has already objected through a motion to intervene. The motion was denied, but HCU is appealing.

Multiple state AGs, particularly in states without an A5 institution, stated publicly they are considering their options. Student-athletes could object now through the notice and opt-in/opt-out process (if there is preliminary approval) or in the future for incoming prospects. Additional parties have started to raise other objections, too, such as collectives and boosters who have expressed skepticism whether some of the forward-looking provisions around third-party payments and NIL are legal.

How can we plan for the House settlement to be finalized?

Contingency planning for multiple outcomes—final approval of the settlement; status quo remaining; or some combination of those—is important. Some institutions may decide to more fully invest in certain sports; some may decide to continue with their current approach. Decisions may need to be made on personnel, staffing, student-athlete resources, sport sponsorship, etc. Ensuring that there is a clear objective and strategic priority for each institution will allow for planning and decision-making to meet those objectives and priorities.

Contact CCHA Sports Law to see how we can help prepare and advise your institution for these changes in college athletics.