‘Sour Grapes’: Lawyers Battle Over Landmark Settlement to Pay College Athletes

The landmark House v. NCAA settlement—already arguably on the rocks—is facing yet another objection.

This time, it’s from the lawyers who won the O’Bannon v. NCAA case that paved the way for college athletes to be paid for their name, image and likeness.

On Thursday, a group of seven current and former athletes represented by attorney Michael Hausfeld filed an objection arguing that the terms in the proposed House settlement range from unfair to flat-out illegal. 

Those terms include $2.8 billion in damage payments to current and former college athletes, a revenue-sharing model where schools would pay athletes directly, and new restrictions on NIL collectives.

Among the athletes are Iowa men’s basketball player Jordan Bohannon, known for advocating for NIL rights during his time as a player, and former Vanderbilt and Georgetown sprinter Kaira Brown, another outspoken athletes’ rights advocate.

House plaintiff lawyers Steve Berman and Jeff Kessler dismissed the objections in comments Thursday to The Athletic. “We have negotiated an almost $3 billion settlement for college athletes. The Hausfeld firm never obtained anything for damages class in the case brought against the NCAA,” Kessler said. Berman called it “sour grapes,” noting he and Kessler were the attorneys on NCAA v. Alston, a case over athlete educational benefits that, while not about NIL directly, also helped pave the way for the current era. 

The new objection echoes several already raised in written objections, as well as concerns voiced by Northern District of California Judge Claudia Wilken during a Sept. 5 hearing. 

It argues the damage payments for athletes who weren’t allowed to participate in NIL before 2021, which amount to about $2.8 billion, are too low. It also suggests that the payment structure, highly controversial among non-power conference commissioners and schools, is “unfair to smaller member institutions.”

The objection takes issue with the revenue-sharing proposed in the injunctive relief portion of the settlement, which would allow schools to share revenue with players up to only about 22% of revenue. The revenue-sharing cap is arbitrary and much lower than the percentage that pro athletes receive—around 50% in the collective bargaining agreements in major U.S. men’s leagues—the objection says, and could limit the money athletes earn in the future. It binds future athletes to an agreement in which they not only have no say, but also would be “worse off.” (Berman and Kessler have argued athlete compensation would equal 50% when the House settlement revenue-sharing deal is added to scholarships and other existing benefits.)

The objection also says the restriction on NIL deals is illegal. The restriction would allow a third party to prohibit NIL collective and booster deals over $600 if they appear to be “pay-for-play” deals rather than “fair-market value.” Judge Wilken took issue with this as well, but the NCAA’s lawyer, Rakesh Kilaru, said the governing body likely wouldn’t agree to a settlement without it.

Finally, the objection points out the NCAA wants to use the settlement to get a federal law passed that would block college athletes from being legally declared employees. The NCAA, for its part, has said multiple times that that’s exactly what it intends to do with the settlement.

The parties filed an amended complaint with limited changes last week. Wilken will decide on whether to grant preliminary approval to the amended settlement, or whether the parties should prepare for a trial that would likely begin early in 2025.