Many have adequately regurgitated the various hot button items for the judge (are future athletes releasing their claims w/o due process, can a harm that has not yet occurred be released, controlling contributions by “affiliated entities”, and grandfathering/transitioning roster limits), so I will not. Instead, I am giving focus on the tenor of the hearing.
Judge Wilken – Generally seemed receptive to most presenters. I felt some of the student objectors, however, were boring her, as were some attorney objectors on topics such as whether separate counsel is required for separate classes of plaintiffs, player damage calculations (basically, “too bad”), and Title IX. She also seemed a little frustrated over the NCAA inflexibility to seemingly agree on anything that remotely suggested a tweak to the settlement, a different way of thinking, partial approval, or that required NCAA counsel to go back to its members as if it was an inconvenience to them. Likewise, issues she deemed de minimis and easily correctable, so not worth arguing, are things like system glitches with the platform and identifying the exact list of College Football Playoff entities and whether they are contributing. She did express awareness that time is of the essence for her final ruling.
Attorneys Kessler & Berman (Class Counsel) - Clearly they want to move this settlement forward and at last appeared to verbally placate the Judge. Attorney Kessler really did a marvelous job of explaining legal precedent and at a high level how the settlement works in favor of the substantial number of athletes who opted in. The items I felt they gave lip service or minimized were topics such as whether the formula disadvantages the athletes getting nothing to minimal payouts over 10 years, whether athletes really had meaningful understanding of what they were opting in for, releasing, or receiving given the system technical issues and propaganda-esq information, and whether future athletes will truly understand and appreciate settlement implications to them and their respective rights of objection versus release of claims when buried in large packet of information, with a relatively short notice to take protective action.
Attorney Kilaru (NCAA Counsel) – Stubborn and not shy about it. He clearly and strongly advocated for approval of a settlement the parties worked hard to craft and approved by NCAA member institutions. His approach was focused on convincing the judge that the entirety of terms, not individually, offer athletes far more than they have today, and she should not approve or address same individually. Basically, this settlement is better than litigation! He could not even fathom how that attitude may change among athletes in the future that this system is not the best for them. Any comments that even remotely suggested changes to the injunctive portion were rebuffed by Kilaru as setting the stage for inconsistency and unpredictability, both unacceptable to the NCAA. I believe he ended his comments with making “no promises” that anything will be different when the NCAA submits to the Judge their commentary in 1 week as she requested
ABOUTTHE AUTHORS:
NILegally Speaking™ is written by PowerNIL/KenFeinberg, attorney, in collaboration with other expert attorneys focused on employment, labor, contract, and intellectual property law.
ken@powernil.com www.powernil.com
