Todd’s Take: Colleges Only Have Themselves To Blame For House Settlement Pickle

In late March and early April, one might be forgiven if they thought a metaphorical Paul Revere was riding in on his horse to save college athletics from itself.

That metaphorical Paul Revere – picture him as NCAA president Charlie Baker or your favorite administrator or coach of your choice –  rode their steed confidently shouting that “the House settlement is coming!”

The House settlement was going to be the solution that would bring some semblance of stability to college athletics. NIL and the transfer portal would still exist, but both would be regulated to add some modicum of structure and control to the chaotic no-rules atmosphere that has been the reality in the last few offseasons.

The final hearing was on April 7, and while most didn’t expect an actual decision that day, many hoped it would be a rubber stamp on the glide path to approval.

The NCAA and its schools were so confident that approval would be forthcoming that they began to implement the agreed upon rules in the House settlement before U.S. District Court Judge Claudia Wilken approved it.

Offseason recruiting continued with the assumption that the House settlement’s creation of direct payments to athletes from schools  up to a $20 million cap would take effect.. The settlement also called for an end to scholarship limits, replaced by a roster limit. That meant painful conversations in many sports between athletes and coaches, who could no longer keep every player due to the settlement agreement.

It was all set – or so the schools thought. Somewhere between the metaphorical Lexington and Concord in Revere’s ride, the horse the NCAA and its schools were riding broke down.

During the April 7 hearing, Wilken heard testimony from those athletes who lost their roster spots. She seemed moved by their plight as they claimed they had no say in their fate as many lost their roster spot or the ability to go elsewhere.

Wilken suggested a compromise in which current athletes affected by this part of the settlement could have their roster spots “grandfathered in,” with the roster limits phased in as they completed their eligibility. It was the only major change Wilken suggested in hinting that she approved other aspects of the settlement.

The NCAA and schools did not, and still don’t, want to acquiesce to that compromise. They have claimed it would create disruption and drive up their cost of doing business as they had already budgeted for the settlement conditions.

The NCAA and its schools played a game of chicken with Wilken and refused to consider the roster compromise in subsequent filings with the court. On April 23, Wilken made it abundantly clear she was not having it.

“Because the settlement is not fair and reasonable to the significant number of class members whose roster spots will be or have been taken away because of the immediate implementation of the settlement agreement, the Court cannot approve the settlement in its current form,” Wilken’s ruling said.

Wilken instructed the NCAA and its schools to modify the settlement to allow for phased-in roster limits. She gave the NCAA and its schools two weeks to hash out an agreement with the plaintiffs.

Those two weeks have come and gone. The NCAA has only gone so far as to agree to a voluntary grandfathered roster limit at the school’s discretion. They’re betting that this will be enough to convince Wilken to approve the settlement.

It’s now May 26, and Wilken has not yet ruled. Schools are beginning to have serious concerns.

The settlement was supposed to take effect July 1. Deals have been agreed upon with players based on the approval of the settlement. If it isn’t approved, chaos could result as these deals would no longer have legal cover.

Some have blamed Wilken for dragging her feet, but that’s not where the blame lies. The NCAA and its schools jumped the gun on implementing the settlement before it was final.

Wilken has agreed that the NCAA and its schools jumped the gun. She said so in her April 23 decision.

“The fact that the Court granted preliminary approval of the settlement should not have been interpreted as an indication that it was certain that the Court would grant final approval,” Wilken said. “One of the factors that courts must consider when determining whether to grant final approval of a settlement agreement is ‘the reaction of the class members’ to the agreement.”

What were the NCAA and its schools thinking by placing themselves in this pickle? I don’t know about you, but I don’t buy furnishings for a house before I’ve signed the final papers and get my key.

The NCAA and its schools claim they had to move on the settlement conditions before final approval for practical reasons. That’s a very dubious claim and it strikes at the heart of the arrogance on which this whole enterprise runs.

The NCAA and its schools certainly aren’t alone in the sports world in believing the world revolves around them, but they’re getting a dose of reality. They are not above a court decision and there was no real world urgency to jump the gun on any of this.

It also seems to be the height of arrogance to play chicken with a federal judge on a reasonable suggestion to the settlement that makes things right for athletes who lost roster spots.

That their reluctance is underpinned by flimsy excuses like “disruption” and a fear of higher costs associated with keeping affected athletes beggars belief. Among many other things, the schools most affected have coaches contracts into the millions with six or seven-figure incentive-based escalator clauses that raise the cost of doing business even more. Now they’re worried about cost controls? That’s rich – literally. Funny that what’s financially flexible and good for the coaches isn’t good for the actual participants.

Wilken hasn’t made her decision yet. Maybe it will come this week, maybe it won’t.

Schools are stewing as July 1 creeps closer, but they only have themselves to blame. They cannonballed off the diving board and made these changes before they were made official.

That they might have jumped into hot water without a boat isn’t the fault of anyone but themselves.

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