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The NCAA and Power Five conferences claim in a new court petition that a NIL class action lawsuit would be the “death knell” for them.
On November 3rd, U.S. District Judge Claudia Wilken certified three damages classes in a lawsuit filed by Arizona State swimmer Grant House, former Oregon and current TCU basketball player Sedona Prince, and former Illinois football player Tymir Oliver.
Because of her ruling, it opened up the lawsuit to more than 14,500 athletes.
That ruling also opened up the NCAA and Power Five conferences to the potential of having to pay more than $4 billion in damages.
The lawsuit claims that the two groups violated antitrust law by restricting NIL (name, image and likeness) income prior to 2021 including possible video games compensation, as well as a share of broadcasting revenue.
Now, Sportico reports, the NCAA and Power Five conferences are seeking what is called an interlocutory appeal.
Filed on Nov. 17, the appeal states, “Denial of this petition would be the death knell of this litigation.”
The defendants insist the risk of an astronomically high damages award “may well force” them to “settle without relation to the merits of the class’s claims.” Stated differently, even if the NCAA and Power Five believe the players’ legal arguments are weak and would be rejected by a jury, they literally can’t afford to be wrong. A jury award of more than $4 billion would be economically ruinous for the NCAA and Power Five and perhaps put them out of business.
Interlocutory appeals in class action lawsuits are rarely granted, however, the use of the “death knell” phrase is being used with the hopes of a 2005 precedent being followed where it was ruled that it should be granted if there is the “presence of a death knell situation for either party absent review.”
The NCAA and Power Five Conferences also argue that in order to determine damages they would have to determine the economic value of an athlete’s NIL on an individual basis – something that there is “no way” for them to do.
They also argue that if the lawsuit succeeds it would unfairly penalize star athletes by paying them the same amount as lesser players.
Lawyers for the players, Jeffrey Kessler and Steve Berman, shot that theory down.
“You can be Tom Brady or the lowest player in the NFL,” they pointed out, but still receive an “equal share” in broadcast revenue.
They have until Dec. 4 to officially respond to the NCAA and Power Five’s petition.