Eight female athletes filed an appeal of the House v. NCAA settlement Wednesday in a California federal court, arguing that the landmark agreement violates Title IX. The appeal only addresses the back damages portion of the settlement, not the portion that establishes the system of direct revenue sharing with athletes.
The watershed settlement, approved late Friday night by federal judge Claudia Wilken, has been years in the making. Last October Wilken granted the settlement preliminary approval, then waded through hundreds of objections filed over the ensuing eight months. Many of those objections were related to Title IX, the federal law that prohibits sex-based discrimination in education and requires schools to offer equitable opportunities to women, including in sports.
Wilken was unmoved by those objections, repeatedly saying the antitrust case had nothing to do with Title IX. But she did leave the door open for future lawsuits based on Title IX targeting how future payments from schools to athletes will be made.
The appeal will not impact revenue sharing — slated to start July 1 for all schools that have opted in — but will pause the back-pay damages portion of the settlement.
John Clune, an attorney who represents the eight women filing the appeal, said he also filed an objection during the settlement adjudication process but that nothing came of it.
“We felt like we were standing on the table waving our arms that somebody had to address this issue, but none of the parties involved wanted to address it, and the courts didn’t want to address it,” Clune told The Athletic, saying Title IX was “deliberately ignored.”
“This was the only option.”
“The injunction set by the court and agreed to by the NCAA, defendant conferences and student-athlete plaintiffs provides significant stability to college sports and enables schools to provide direct financial benefits to students-athletes totaling nearly 50% of athletics department revenue,” the NCAA said in a statement Wednesday. “The NCAA is moving forward with implementing the settlement injunction to deliver this massive win for student-athletes.”
“The Title IX issues do not belong in this antitrust case,” said Jeffrey Kessler, one of two lead plaintiffs’ attorneys in House v. NCAA. “They were thoroughly considered and properly rejected by the district court. Yet these objectors are callously delaying the distribution of damages to more than one hundred thousand athletes waiting for them so that they can quixotically pursue Title IX issues that have nothing to do with this settlement.”
The eight women represented in the lawsuit are Kacie Breeding from Vanderbilt; Lexi Drumm, Emma Appleman, Emmie Wannemacher, Riley Hass, Savannah Baron and Elizabeth Arnold from the College of Charleston; and Kate Johnson from the University of Virginia.
Drumm, a recently graduated soccer player, said she joined the appeal because female athletes have not been given the same priority as male athletes, especially those that compete in traditional revenue-generating sports such as football and basketball.
“I think for so long female athletes have just been OK with getting whatever scraps are left and are told just to be thankful that they’re even competing and not aspire for more,” said Drumm, a business administration and political science major who is heading to law school in the fall. “Title IX is supposed to be a promise to get a full seat at that table and not just get the scraps.”
The appeal argues that the $2.8 billion in damages set to be distributed to former athletes who couldn’t earn NIL (name, image and likeness) money before 2021 violates Title IX because female athletes will be paid less than football and men’s basketball players.
“I understand in a professional sphere that, I totally get it, different salaries, different revenue,” the 22-year-old Drumm said. “That’s a business, but college athletics, wasn’t supposed to be that. And I think that we need to take a step back and realize the implications that it’s having on female athletes.”
Clune said the settlement suggests “schools would have paid male athletes over 90 percent of their revenue over the past six years as though Title IX didn’t apply. If Nike wants to do that, that is their choice. If the school, or a conference acting on the school’s behalf tries to do that, they are violating the law.”
“They can either pay the athletes proportionately, or they can return all of their federal funds,” he said. “But they can’t do both.”
Clune said his clients “support a settlement of the case, just not an inaccurate one that violates federal law. The calculation of damages is based on an error to the tune of $1.1 billion. Paying out the money as proposed would be a massive error … Congress has expressly rejected efforts to prioritize benefits to football and basketball from Title IX’s requirements.”
Clune said the Title IX implications for future payouts are still to be determined. In the meantime, the appeal process is a “slow burn,” with a briefing schedule and oral arguments likely to be set in the next nine to 12 months.
“It wouldn’t surprise me if we see lawsuits against schools for those (rev share) payouts at some point,” he said.
(Photo: Andy Lyons / Getty Images)
