House Plaintiffs Seek Judicial Intervention in Effort for Representation as Potential Settlement Is Pending

By Gregg E. Clifton and David Tango

While Grant House, Sedona Prince and Nya Harrison spearheaded the plaintiffs class action efforts in the case now known and referred to as House v. NCAA, the three are now seeking additional assistance well beyond the scope of the proposed settlement documents currently being considered by presiding Federal District Court Judge Judith Wilken.

The three plaintiffs submitted an ex parte letter to Judge Wilken, dated Dec. 2 from an address in Birmingham, Alabama, not the Park Avenue address of their lead counsel from Winston & Strawn. The specific text of the letter and the requests of the three named plaintiffs have just become public. House, Prince and Harrison acknowledge the "unusual" nature of communicating directly with the court and Judge Wilken. However, despite their admittedly unconventional approach, the trio are attempting to communicate directly with Judge Wilken because they claim the proposed $2.8 billion settlement "does not recognize that they are limited in their ability to effectuate the changes we intended to make in college athletics." While the trio avoid the word “object,” it appears that they are expressing a collective voice of concern regarding the settlement terms.

The three plaintiffs assert that independent representation is needed for college athletes to establish standard NIL contracts, equitable minimum payments, and health protections. House, Prince and Harrison assert and seek the assistance of Judge Wilken "to create an ecosystem where athletes can thrive, as the current system has been saturated with misaligned incentives that jeopardize the holistic development of the athletes that drive it." Ultimately, they assert, "we need a players' association." 

While the National Labor Relations Board and multiple regions operating under its auspices have supported the efforts of current NLRB General Counsel Jennifer Abruzzo's goal of trying to have student-athletes be recognized as employees with all the inherent rights and privileges of employee status under the National Labor Relations Act, an ex parte effort, without the outward involvement of their counsel, appears to be short-sighted and destined for failure. 

While the trio of named plaintiffs asserts the important role that Athletes.org has played for them and their nearly 4,000 current college athlete members, there is no legal prohibition that stops this group or its members from following established National Labor Relations Board policy and procedure to formally seek their recognition as the certified union representative of these college athletes.

As we have already observed with the unionization of the Dartmouth College men's basketball team, and the pending unfair labor practice case involving efforts by the USC football team and the men's and women's basketball teams to be named as joint employees of USC, the NCAA and the PAC-12 conference, the NLRB currently supports these efforts to establish employee status and the potential unionization rights for college athletes..

Unfortunately, the current matter before Judge Wilken involves her review and potential approval of a $2.8 billion settlement of an anti-trust case. It does not involve a request or demand for her or any other federal court judge to recognize or appoint Athletes.org as the legal representative of the college athletes for purposes of collective bargaining. The rights of Athletes.org and their 4,000 members are beyond the scope of this settlement review and analysis by Judge Wilken, and the named plaintiffs’ ex parte submission to Judge Wilken seeking her “imprimatur” is clearly improper, either with or without the approval of their counsel.