Over the last few weeks, as settlement talks have progressed on House v. NCAA, the party line from those involved in the conversations (the NCAA itself, Power Four administrators, and the class action lawyers suing the NCAA) has been that the settlement, in large part a revenue-sharing agreement, will protect the NCAA and these conferences from future lawsuits. We and others have questioned this premise. Why would settling with one group of former athletes keep other groups from suing independently? Since we last asked, we’ve received some answers. Their promise is mixed.
The situation at hand is that college sports broke the law. The NCAA’s member schools made a lot of money through illegal means, most notably but not exclusively by forbidding athletes from making money off of their own name, image, and likeness. There was a market for these athletes’ services, and college sports’ governing bodies closed that market off to the athletes, capturing the profit for themselves. Schools did this forever, but the magnitude of the impact grew over time, and in some ways might be continuing to grow. (There’s a lot left undetermined as far as what is and is not against the law.)
In response to this lawbreaking, a number of athletes have sued the NCAA. The House group, led by former Arizona State swimmer Grant House, has reached the stage of the lawsuit where settlement talks can begin. The lawsuit is a class action lawsuit. It is not only a lawsuit on behalf of House and the others with whom he sued, but a lawsuit on behalf of all college athletes. The problem is: What if the other college athletes want to file a different lawsuit?
This last piece was our question as recently as Monday. It remains relevant, but we’ve received the attempted logic. From ESPN:
The plaintiffs, which could include all current Division I athletes, would give up their right to file future antitrust claims against the NCAA’s rules. … The sides would also agree to renew the class on an annual basis to include new athletes. To challenge the NCAA’s restrictions on payments in the future, new athletes — mostly incoming freshmen — would have to declare that they are opting out of the class. … While individual athletes could still opt out and sue the NCAA, the damages for a single athlete or small group of athletes would be far smaller. So, in practice, the House case settlement would provide schools with protection from future suits by removing the financial incentives that make these cases — which often takes years to fight — worthwhile for a plaintiffs’ attorney.
In other words: The House lawyers are asking a judge at a US District Court in California to evidently say, “Yes, this lawsuit is the one. This covers all the wrongs these schools have done to athletes. Athletes don’t have to accept it, but if they don’t want to accept it, they either have to opt out now or opt out at the time they become college athletes in the future, and they then have to file their own separate lawsuits.” Power conference schools are betting no other effort to sue will pick up enough steam to make a significant financial impact.
The problem for power conference schools (they’re the ones making the decision here, all non-Power Four conferences are evidently along for the ride) is that there’s already another effort with a lot of steam. Fontenot v. NCAA, led by former Colorado football player Alex Fontenot, is ongoing in a US District Court in Colorado, and today the judge there ruled it should not be consolidated into House v. NCAA as the NCAA (and House’s lawyers) requested. The House v. NCAA settlement, then, is not only in the hands of the California judge, but indirectly in the hands of the Colorado judge, and indirectly in the hands of any other judge who hears a case against the NCAA.
I am not a lawyer, nor am I a legal expert through some other means. I don’t know what’s legally feasible. I don’t know what’s normal within class action suits. What strikes me as an outsider, though, is how quickly the NCAA and the House lawyers are trying to push their preferred settlement through. The concept of college athletes being paid above the table in any form is still extremely new. We have no idea what the steady state is in any of these markets. Yet here are the most powerful entities in the industry pitching this settlement as a lasting peace to collegiate athletics labor strife, and we’re supposed to believe it’s not nefarious? When they have a history of acting nefariously?
The first problem for college sports is that the industry’s been breaking the law forever and most of the stolen money’s been spent. It’s not there to be paid back. The college sports industry owes an undetermined amount of money to its former athletes, and it doesn’t have the cash on hand to pay up. The proposed House settlement addresses this by redirecting future revenue to pay past debts, but it can only try to “determine” how much money is owed. Anyone who thinks they can is free to try to add to the sum. Fontenot et al. are already trying, and their case proceeds. Also, the majority of Division I schools, those not among the Power Four conferences, are unhappy with the proposed terms of the settlement. Maybe that ends up being inconsequential, but one would think legal action from those 27 conferences is at least somewhat plausible.
The second problem for college sports is that the industry might still be breaking the law? And the settlement might break the law? The settlement provides a mechanism for future athletes to be paid a share of revenue (mostly TV revenue), but it’s optional for schools and it includes a cap on how much revenue a school can share with its athletes. It’s still unclear, at least to me, whether donor contributions to athletes (we currently call these NIL payments) would be capped, but there’s a sort of salary cap in place that I, at least, am far from confident would hold up in court in the absence of proactive collective bargaining. Even professional sports’ salary caps seem to stand on shaky legal ground, held up by antitrust exemptions carved out in a different economic world than today’s.
What NCAA schools seem to be trying to do, then, at least to my eyes, is settle their debts for past crimes while continuing to commit crimes, hoping that their continued crimes will either never be challenged, will be carved out as legal by Congress, or will be found legal in the eyes of the courts.
Here’s a different approach college sports could use:
- First, separate future revenue sharing from the House v. NCAA settlement. Focus that settlement on paying out what should have been paid out. In short: Make the past wrong right.
- Second, allow schools to share revenue with their athletes, leaving it up to conferences to determine how to restrict this market, if at all. Allow free markets to exist and allow them to reach a steady state. In short: Stop trying to commit crimes.
When you suggest this, of course, the fearmongering goes into overdrive. This would be an even Wilder West. Competition would be destroyed. Schools would go bankrupt! It would not be wilder, though, and competition would be just fine, and schools would not face any greater risk of financial insolvency than they currently face.
- Wild West: Schools are more reputable than their boosters. Putting the payment flow in their hands and allowing them to share their own revenue directly with athletes would diminish the lawless nature of the current market.
- Competition: The range of Division I athletic budgets is already breathtaking, and we sure seem to like college sports as they currently stand. The market’s favorite up and coming college sport, women’s basketball, is startlingly noncompetitive. Only one double-digit seed won a first round game in this year’s NCAA Tournament. Only one team seeded 6th or worse made the Sweet Sixteen, and that was Duke, not some little basketball engine that could. Mid-major fans sometimes dream of a world where Akron and Alabama compete with one another on level ground, but that’s not college sports. That’s some video game with a 130-team NFL.
- Financial stability: Schools are run by grown-ups. They should be able to make sure they don’t pay too much money. And frankly, I think we’ve seen that the booster appetite is plenty large enough to keep this from being a concern.
Again, there are plenty of legal details here I neither know nor understand. I understand that the House lawsuit and the Fontenot lawsuit and all the other lawsuits must be resolved on their own pace, and won’t necessarily wait for the steady state to be reached. But the House v. NCAA settlement was billed as something that would solve all sorts of problems, and right now, it’s unclear if it can solve any. Why not focus on restitution for crimes already committed, and let the schools go figure out how to stop committing them on their own?
Baseball’s Best Aces (On Paper)
I was reminded, watching Max Fried dominate the Cubs last night, that Max Fried is going to be a free agent this offseason. As regular Cubs readers know, I’m of the opinion the Cubs could use a bona fide Game 1 starter as they reenter the sphere of playoff contention. Where, though, does Fried rank? And where does everybody else rank?
Here’s FanGraphs’s top 15 for the rest of the season, using their Depth Charts projections. These are for total production, so currently injured pitchers face a heavy discount.
1. Zack Wheeler
2. Tarik Skubal
3. Aaron Nola
4. Corbin Burnes
5. Pablo López
6. Kevin Gausman
7. Logan Webb
8. Chris Sale
9. Luis Castillo
10. Tyler Glasnow
11. George Kirby
12. Shōta Imanaga
13. Yoshinobu Yamamoto
14. Max Fried
15. Joe Ryan
Takeaways? Well, no wonder the Phillies are awesome. Ranger Suárez isn’t even on this list (he’s 23rd). Imanaga might be a real Cy Young contender? Incredible. Great news for the Cubs. Fried isn’t one of the greatest pitchers in the league? Noted.
Overall, I think the biggest theme is that it’s not obvious these days who’s about to be one of the best starters in the league. Like the NBA, baseball’s going through a little bit of a generational shift. Max Scherzer and Clayton Kershaw and Justin Verlander have aged out of their greatness. Jacob deGrom and Gerrit Cole might be close to that as well. Chris Sale is presumably on his way. This list has exactly one Cy Young winner. Corbin Burnes. Everyone else is still rising.
The Rest
The NBA:
- I’m not expecting to be shaken from any priors tonight with what happens in Pacers vs. Celtics. Even if the Pacers win big, it’ll be easy to write off as one of those nights the Celtics didn’t show up. If the Celtics shoot the lights out and it’s still a tight game, maybe then we’d reassess, but it feels like the only question is 2–0 or 1–1.
- With regard to last night, I’m curious how the Wolves will adjust to the Mavericks being a two-guard team rather than a guard/big combo like the Nuggets. Nikola Jokić’s comments that the Wolves were built to beat the Nuggets got a lot of run, but looking back at them, I don’t think enough attention was paid to what that implies about Wolves vs. Mavs. The Wolves should be able to adjust, but what they do will need to be pretty different to handle two really good versions of Jamal Murray rather than one Jamal Murray and one Nikola Jokić,
The NHL:
- “Don’t commit penalties” seemed to work really well for the Panthers last night in shutting down the Rangers’ power play. The Capitals averaged 14 penalty minutes per game against the Rangers in the first round. The Hurricanes averaged seven per game in the second. The Panthers recorded just four last night.
- I have no analysis for Stars/Oilers besides that I saw ESPN run something saying the Oilers should have the same confidence in Stuart Skinner that the Panthers should have in Sergei Bobrovsky, and that seems absolutely insane. The guy allowed four goals on fifteen shots just three games ago.
Chicago:
- I understand the concern about the Cubs’ offense, but it’s been 20th-best in the majors by wRC+, it’s 13th-best on paper (using schedule-independent FanGraphs-projected runs per game), and they’re still two back in the NL Central and pretty comfortably in a Wild Card spot. Dansby Swanson is not supposed to be a great hitter. He’s not underachieving by a crazy amount. Seiya Suzuki and Cody Bellinger both missed a lot of time. Christopher Morel’s been league-average and has one of the widest xwOBA/wOBA splits in the league, which means he’s been hitting the piss out of the ball with nothing to show for it. The Cubs’ offense shouldn’t be great—13th-best is definitionally mediocre—but it’s not terrible. And it won’t be.
- Connor Bedard had an assist for Canada as they eliminated Slovakia this morning at hockey worlds. Lukas Reichel and Germany fell to Switzerland (Philipp Kurashev didn’t play). Team USA was eliminated by the Czech Republic, who went with Lukas Dostal in goal instead of Petr Mrazek.
- The Sky visit the Liberty tonight, who are off to a 4–0 start and are the heavy Eastern Conference favorites.
