Colorado Antitrust Suit Against NCAA Keeps Athlete Claims Alive

Former college athletes are keeping antitrust claims alive in Colorado against the National Collegiate Athletic Association despite the sports organization’s nearly $2.8 billion settlement designed to stave off lawsuits.

The NCAA and its Power Five conferences last week announced the proposed settlement, and agreed to start directly paying college athletes and sharing sports revenues with them. The changes were meant to resolve claims in three pending antitrust suits challenging NCAA limits on student compensation, one of which was certified as a class action last year.

But the settlement doesn’t include a proposed class action against the NCAA by former University of Colorado football player Alex Fontenot and former college women’s basketball player Mya Hollingshed.

The Colorado suit is broader than the certified class action case, alleging that the NCAA’s limits on compensating players restrain competition in the labor market for athletes’ services. Plaintiffs in the other NCAA cases, particularly those who have gone professional, may join the Colorado suit to fight for the broader issue of athletes’ rights, said Mit Winter, an attorney with Kennyhertz Perry who heads the firm’s sports law practice.

“There are probably lots of athletes in the NFL and NBA and other professional leagues who see themselves as an athletes’ rights advocate and college rights’ advocate, and feel they should be more involved in the process of determining how much compensation college athletes can receive,” Winter said. “That could be a reason to opt out.”

The certified class action case, named after former Arizona State University swimmer Grant House, was more focused on the narrower issue of compensation for athletes’ names, images, and likenesses.

A Colorado judge last week denied the NCAA’s request to transfer the suit to the Northern District of California, the jurisdiction of the other pending cases. It’s still unclear if the NCAA can successfully argue that the claims in the Colorado case should be covered by the proposed settlement.

“We are pleased with the court’s decision to keep the case in Colorado and like everyone else, we will be taking a close look at the proposed settlement once it’s released to the public,” an attorney for the plaintiffs in the Colorado case, Garrett Broshuis of Korein Tillery, said.

Pending Court Approval

The settlement is significant given the size of the backpay expected. But more details are needed to better understand the proposed revenue-sharing model among schools, along with how pay could be evenly distributed between women and men athletes under Title IX of the 1972 Education Amendments, said Kate Buck, a partner in McCarter & English’s sports and entertainment industry team. Title IX prohibits discrimination on the basis of sex in any education program that gets federal funding.

The NCAA has argued that an antitrust suit over compensation limits for name, image, and likeness would favor men over women in awarding damages.

“There’s still a lot of uncertainty,” Buck said. “It’s not going to save them from ongoing litigation necessarily.”

See also: NCAA Pay Plan for Athletes ‘Too Little, Too Late’ to Curb Suits

The court may also view the settlement skeptically, as it leaves intact the NCAA power to fix compensation of student-athletes, said Marc Edelman, an antitrust law professor at Baruch College’s Zicklin School of Business.

“At the end of the day, it makes no difference if the NCAA member schools get together and agree that college athletes get zero percent of the revenues — or if they get together and agree that college athletes get a pre-defined set share of the revenues moving forward that is more than zero,” Edelman said.

“In either case, you have a concerted restraint.”

Plaintiffs in the Colorado case are represented by Korein Tillery and Olson Grimsley Kawanabe Hinchcliff & Murray LLC. The NCAA is represented by Wilkinson Stekloff LLP and King & Spalding LLP.

The Colorado case is Fontenot v. National Collegiate Athletic Association, D. Colo., No. 1:23-cv-03076.