College Athlete NIL Class Payments Would Favor Men, NCAA Argues

The proposed classes in a suit over college athletes’ name, image, and likeness compensation have a gender equity problem, vastly favoring men in damage payments, the National Collegiate Athletic Association argued Thursday before a federal judge in California.

Current and past players on men’s and women’s Division I teams moved in May to certify damage classes of college athletes in a proposed class action that challenges the NCAA’s restrictions on those rights. Football and men’s basketball, women’s basketball, and additional sports players would make up the three classes, with members of all groups competing between June 15, 2016 and the date of the class certification order, according to the athletes’ proposal.

But the plaintiffs’ calculation for damages would allocate 96% to men—a Title IX violation, Wilkinson Stekloff LLP partner Rakesh Kilaru argued on behalf of the NCAA.

“That’s the world they want you to sign off on,” Kilaru said. “That’s not a world that could exist.”

Plaintiffs responded that Title IX doesn’t apply to damages payments, and that it is the NCAA’s fault that women’s sports are valued less than men’s sports.

It’s impossible to determine who’s injured in each class because of the substitution effect, Kilaru said—if athletes had increased compensation, some athletes may have stayed on their teams for longer, meaning the composition of the teams would be different, he said.

Judge Claudia Wilken of the Northern District of California appeared skeptical of the argument.

“But you can’t just unwrap that for years,” Wilken responded. “I mean, yes, somebody might have broken their leg when they were in first grade and not been able to play football. But the fact is, we end up with some teams with certain people on them. And yes, it might be a question whether they can prove that all those people were actually injured. But it’s not hard to prove who’s on the teams.”

Arizona State University swimmer Grant House, University of Oregon basketball player Sedona Prince, and former University of Illinois football player Tymir Oliver first sued the NCAA in 2020.

Wilken advanced the proposed class action in 2021, shortly after the US Supreme Court ruled to allow more compensation for student-athletes.

Kilaru also argued that it doesn’t make sense for all athletes in a class to receive equal payments because skill level and star power varies.

Winston & Strawn LLP co-executive chairman Jeffrey Kessler said, for the plaintiffs, that name, image, likeness rights don’t work that way. He pointed to National Football League video games, where players like Tom Brady would receive the same compensation as the lowest-skill player for being part of a game. “It’s like a group license,” he said.

Winston & Strawn LLP, Hagens Berman Sobol Shapiro LLP, and Spector Roseman & Kodroff PC are representing the athletes. Wilkinson Stekloff LLP and ArentFox Schiff LLP are representing the NCAA.

The case is In re College Athlete NIL Litigation, N.D. Cal., No. 4:20-cv-03919-CW, 9/21/23.