Roster Limits Remain a Sticking Point to Settle Landmark NIL Case Against the NCAA

On April 23, Judge Claudia Wilken issued an order in the ongoing antitrust class action, House v. NCAA. The order, discussing a settlement agreement between the parties, stated that the Court can tentatively grant final approval of the settlement agreement, “[w]ith the exception of the immediate implementation of the roster limits provisions.”

In a final settlement approval hearing on April 7, Judge Wilken expressed two primary concerns:

• the immediate implementation of roster limits and
• the settlement’s binding effect on future college athletes, releasing their potential claims against the NCAA.

The parties amended the settlement agreement after the April 7 approval hearing, but they only addressed one of Judge Wilken’s concerns; the settlement will no longer bind future NCAA athletes until they are given an opportunity to object to the settlement agreement.

However, to Judge Wilken’s dismay, the amended settlement agreement still provides the immediate implementation of roster limits.

The roster limits in the settlement were proposed to replace the NCAA’s current scholarship limits. These roster limits will – at least according to the party representatives seeking approval of the settlement – help level the playing field among schools with varying athletics budgets. The fear is that if schools have unlimited scholarships with no roster limits, the potential exists for wealthier programs to corner the market on talent.

On the other hand, there is friction with the proposed roster limits because they will eliminate opportunities for thousands of prospective walk-on players, as well as current NCAA athletes. For example, some college football teams have over 140 players currently rostered and the settlement would demand a cutoff at 105 players. For football, the settlement would increase the number of available scholarships from 85 (the prior scholarship limit) to 105 (the new roster limit). But it comes at the cost of eliminating hundreds of roster spots among NCAA programs. Every football player beyond the 105-limit would lose their roster spot. The same problem persists throughout 18 other NCAA sports that would have roster limits imposed on them that would be smaller than the current average roster sizes.

Judge Wilken remains worried about the harm the immediate implementation of roster limits will have on student athletes. Her chief concern is that current NCAA athletes will be removed from their respective rosters and simultaneously forced to release their potential claims against the NCAA with no right to opt-out. Per Judge Wilken, “that outcome is not fair to those class members.”  Legally, the court can only approve the settlement if it is fair, reasonable, and adequate. Judge Wilken finds the immediate implementation of roster limits neither fair nor reasonable to current student athletes, which is why she “cannot approve the settlement agreement in its current form.”

At the April 7 approval hearing, Judge Wilken suggested grandfathering-in current athletes as a solution. The parties seemingly disregarded this suggestion and instead made no changes to the language on roster limit implementations. As a result, “[t]he Court will delay denial of final approval” to allow the parties to modify the settlement agreement so current student athletes are not harmed. In other words, Judge Wilken emphasized that she meant what she said before and encouraged the parties to try again.

At this point, it appears the only route to gain settlement approval of the class action is if current athletes are grandfathered-in, or the roster limits are gradually introduced so current athletes are not impacted. The lawyers for the athletes have stated they would accept the gradual introduction of roster limits. So, it is seemingly on the NCAA to budge on this portion of the settlement agreement.

Recent NCAA enactments include roster limits for the 2025-2026 academic year that mirror those in the proposed settlement. In accordance with the NCAA enactments, some teams have already made roster moves for the 2025-2026 school year based on the House settlement. The NCAA and Power 5 conferences now argue that grandfathering-in current athletes would cause significant disruption because of the roster moves already made in anticipation of the settlement. Judge Wilken did not find this persuasive, stating that “[a]ny disruption that may occur is a problem of Defendants’ and NCAA members schools’ own making. The fact that the Court granted preliminary approval of the settlement agreement should not have been interpreted as an indication that it was certain that the Court would grant final approval.”

In her April 23 order, Judge Wilken gave the parties two weeks to consult with a mediator about modifications of the settlement. She also issued a separate order setting a case schedule. Although no trial date is set, she is ready to move the case towards trial if the parties cannot adequately address her concerns.

Please contact Steven Blank, Candace Gregory, Patrick Judd, Rhett Parker, Michael B. Victorian or any member of Phelps’ litigation or media, sports and entertainment teams if you have questions or need advice and guidance.