Given the momentum of the last year, it seems unthinkable that the House settlement might not be approved. However, it’s still—in fact—a proposed settlement, subject to Court approval. And, Wednesday’s order by Judge Wilken indicated that Her Honor is not ready to grant approval of the proposed settlement as submitted.
We also won’t bury the lede: perhaps most critically, the Court found the majority of the settlement to be acceptable:
- “With the exception of the immediate implementation of the roster limits provisions that will cause harm to certain members of the Injunctive Relief Settlement Class, as discussed in more detail below, the Court tentatively finds that it can grant final approval of the remainder of the settlement agreement as fair, reasonable, and adequate to members of the Settlement Classes under Federal Rule of Civil Procedure 23(e)(2) notwithstanding the objectors’ arguments, which the Court is inclined to overrule” (Order at 2).
However, the Court indicated it is unwilling to accept the proposed immediate imposition of roster limits.
A steady drumbeat of current and prospective student-athlete objectors over the prior months, culminating in in-person argument at the April 7 hearing and over 100 separate submissions following the hearing, provided first-person accounts of lost opportunity. Judge Wilken expressed sympathy with those concerns at the April 7 hearing and asked the parties to reconsider the imposition of immediate roster limits. In their subsequent submission to the Court, the parties did not propose that the roster limits be grandfathered in, as the Court had recommended. On Wednesday, the Court found that:
- “Because the settlement agreement is not fair and reasonable to the significant number of class members whose roster spots will be or have been taken away because of the immediate implementation of the settlement agreement, the Court cannot approve the settlement agreement in its current form” (Order at 3).
Accordingly, the Court indicated it “will delay denial of final approval to permit the parties to attempt to modify the settlement agreement so that members of the Injunctive Relief Settlement Class will not be harmed by the immediate implementation of the roster limits provisions” (Order at 4).
The Court also offered what seems to be a manageable roadmap to approval, noting that the parties might “modify the settlement agreement to ensure that no members of the Injunctive Relief Settlement Class who have or had a roster spot will lose it as a result of the immediate implementation of the settlement agreement,” adding that “[l]imits could be accomplished gradually by attrition” (Order at 4).
The Court directed the parties to confer with a mediator within the next fourteen days to aid their making modifications to the settlement agreement to address the Court’s concerns.
As if to suggest that the parties not call Her Honor’s bluff, the Court issued a scheduling order, setting due dates for briefing on summary judgment (parties requesting the Court to find in their favor, avoiding the need for trial) motions and Daubert (expert witness) motions in June-August, setting a hearing on those motions for September.
We’ll continue to keep you posted.
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