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There's still a LOT we don't know about what happens Post-House:

From Title IX to collectives, to judge approvals and more...we don't know.

Good morning, and thanks for spending part of your day with Extra Points.

I’m back in Chicago now, trying to work my way through a slew of emails, text messages and radio requests that I missed while I was down in Orlando. My non-video game readers are asking all sorts of questions about the implications of the NCAA/P5’s House settlement, an agreement that will create a direct revenue-sharing component with athletes for the first time.

I recognize that this answer makes for terrible sports talk radio, but it’s the only honest answer I can give to most of those questions. I do not know.

Honestly, there are a lot of huge questions that I don’t think anybody can really know right now. For example:

How do the settlement terms in House impact compliance with Title IX?

Steve Berman, one of the lawyers who represented the plaintiffs in House, told Kristi Dosh of Forbes,

"We told the court well, we don't think Title IX applies because in our world, this is money that goes to the conferences. And then the conferences are allowing schools to pay it, so it's not directly from schools. Not sure that argument is now going to fly given the structure."

Dosh quotes other leading attorneys, whose opinions run the gamut from “I can’t conceive of a world where the settlement doesn’t implicate Title IX” to “I don’t think these funds are covered by Title IX.” As best as I’ve been able to tell, the only way to know who is actually right is through additional litigation or court clarification.

Who knows how long it might take for the legal system to clarify any of those questions. The NIL era started in 2021, and courts, or the Department of Justice, have yet to offer crystal clear clarification as to what obligations a university might have re: NIL and collectives, let alone explicit revenue sharing. It’s entirely possible entire compensation systems could come and go before the courts get around to answering any of these questions…which could mean that schools could have a hard time figuring out their risk exposure levels.

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What does direct revenue sharing mean for collectives? Or the entire NIL Industrial Complex?

Those who make a living running NIL Collectives, surprise, are confident that NIL collectives will continue to exist and remain integral components of the talent acquisition and retention system.

Maybe! But boy, I see a lot of unknowns here.

For one, we don’t really know what direct revenue sharing will do for donor interest. There are some markets where I think it is pretty clear that competitiveness and a desire to win trump nearly every other concern. If schools can theoretically directly pay football players six figures, well, that’s just the new floor, and NIL collectives will need to raise donor funds to exceed that mark. If a collective operator in the SEC, for example, says that this ruling won’t change anything for them, I believe them.

But will that be as true in say, Minnesota, or Virginia, or Arizona State? If every P4 football starter, hypothetically, is getting a revenue sharing stipend of $150,000 a year, will collectives in those markets be able to raise non-tax-deductible donations to give those athletes even more money? In markets where collective fundraising is dominated by two dozen or so donors, what happens to the market if four or five people decide to give less, or give elsewhere? How might a partial NIL market correction impact talent markets in the Southeast?

Beyond that, will this ruling legally empower the NCAA to take more steps to restrict outside fundraising? It won’t protect them from state lawsuits, but armed with some judicial protections, and perhaps a renewed interest from lawmakers (especially if Republicans win back the Senate and White House), could the NCAA influence the third-party market in some other ways?

Right now, I think it is probable that some level of donor fundraising for athletes will continue post-House, but I believe there are too many unknowns right now to assume it will continue exactly as it is right now.

Is this entire thing even going to get approved?

Probably, but I don’t think the chances that the settlement get kneecapped before it really starts are zero.

For one, I don’t think it is automatically a given that all athletes are going to enthusiastically support this settlement. SEIU Local 560 president Chris Peck, whose union represents the Dartmouth men’s basketball team, told Sportico that

“The attempt at a revenue-sharing workaround only supports our case that the NCAA and Dartmouth continue to perpetrate a form of disguised employment…The solution is not a special exemption or more congressional regulation that further undermines labor standards. Instead, NCAA member universities must follow the same antitrust and labor laws as everyone else. Only through collective bargaining should NCAA members get the antitrust exemption they seek.”

Jim Cavale, whose Athletes.org organization probably represents more active college athletes than any other trade organization or advocacy group, also said that “I think you’re going to see a lot of athletes opt out of this and speak up…they’re not just going to take this like I think the leaders in college athletes are expecting.”

As I understand the pushback, some sports lawyers, athlete advocates and union leaders point to the settlement, which will create a revenue sharing structure over the next decade, occurred between the NCAA/P5 and plaintiff attorneys, not athletes or athlete-elected representatives. Nobody collectively bargained, and if approved as structured, the settlement could make it harder for future athletes to sue or negotiate for better terms…at least in the short term.

It is possible that Judge Claudia Wilken could refuse to approve the settlement on those grounds, although probably not likely. It’s also possible that athletes could opt out of the House settlement and join in other antitrust lawsuits (like Fontenot, if it is not combined with House).

Organizing athletes is very hard. I would imagine that the single most likely outcome is that the settlement is approved and enacted largely as it was crafted…but there’s enough uncertainty right now that I wouldn’t want to make any assumptions.

Who pays for this, and how? What gets cut?

I believe the answers to this question will become more clear over the next several months, as the fine print to the agreement gets hammered out and schools can make more informed decisions about their exact financial obligations…and what they’ll need to do to stay competitive.

Are wholesale Olympic sports cuts a possibility? Yes. That isn’t me saying they should happen, or even need to happen, but that will certainly be an option that some schools will consider if they decide to opt in to some level of direct revenue sharing for football and basketball players. Title IX will likely make it difficult for too many schools to nuke too many opportunities at once, and the short-term cost savings for axing the tennis and golf programs aren’t as much as you might think…but I do expect this to be an option on the table.

I’d also expect administrative belt-tightening across all levels of D-I. Athlete revenue sharing will likely push salaries down, not just among head coaches, but with assistants, associate ADs, analysts and operations personnel. Staffers who work in “athlete support services”, from life skills to academics to spiritual life, may find themselves more expendable. I don’t think many programs, large or small, will support the same headcount as they did in 2022.

But which programs decide to opt-in, at what level, and with what changes to their total scholarship offerings...are still TBA in my humble opinion. These decisions are going to be more locally influenced than you might think, which makes broad, sweeping proclamations harder to do. Donor demands, conference sport sponsorship, existing Title IX liabilities, and other factors will influence those decisions.

I do know this. This settlement is a gigantic deal.

It’s a big win for elite athletes, a potentially massive fissure between big schools and small schools, and a potential reset for congressional interest in college sports regulations. Over time, I think it will have an even larger impact across the college sports industry than Alston or any single piece of state legislation.

But the devil is in the details, and details are still in sparse supply at the moment. When I get more that I can trust, I promise I’ll write about ‘em.

But for now, if you book me on your radio show…I’ll probably have to say “I don’t know” a teensy bit more than you’d like.

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