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Last week, lawyers representing the NCAA, the plaintiffs in House and other constituencies met with Judge Wilken for a hearing on the proposed settlement to the case. Had everything gone according to plane, Judge Wilken could have granted preliminary approval to the settlement package, allowing the process to move towards a more permanent resolution. But things did not go according to plan.

Wilken declined to grant preliminary approval, and urged the attorneys on both sides to “go back to the drawing board” to figure out how to resolve her concerns. Those concerns center on the NCAA’s proposed system to differentiate between market-driven NIL and bagman, er, collective-driven NIL, via a third party administered clearinghouse.

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For the House plaintiff attorneys, scrapping that regulatory system isn’t a problem. Via ESPN:

But Rakesh Kilaru, the lead attorney for the NCAA, wasn’t willing to commit to anything, saying that the proposed rules for collective and booster NIL activity were “central” to the proposed settlement.

“Without it, I’m not sure there will be a settlement,” he said.

Sure, but that’s just the lawyer trying to buy time, right? Surely this won’t be the actual hangup that blows up the deal….right?

Wellllllll, maybe…maybe not.

Remember, Kilaru isn’t spotting his own personal opinions from the courtroom…he’s paid to advocate for what his clients, in this case, the NCAA and representatives from the power conferences, want. And there’s some reason to believe that his clients really want to try and put the booster activity toothpaste back in the tube.

Here’s Yahoo’s Ross Dellenger, reporting shortly after the hearing,

I mean, I can think of a few billion reasons to still settle the case, but there really is no settlement if the opinions of this particular power conference school president represent the majority opinion.

Another university president, Georgia’s Jere Morehead, also insinuated that there isn’t much wiggle room on the NCAA’s side to make tweaks to the proposed settlement, saying,

NCAA President Charlie Baker, in a letter sent to NCAA membership on Friday, told NCAA membership that the hearing “did not go as we hoped”, but took a more neutral tone whether the NCAA could resolve those differences or would go to court.

If the NCAA were to scrap the settlement and go to court, and then ultimately lost, the organization could be on the hook for financial damages in excess of four billion dollars. For what it’s worth, while many ADs and senior athletic administrators, particularly from smaller leagues, have expressed deep frustration with the settlement process and exact payout schedule to me, I’ve never heard from or read any senior leader say that the NCAA should not have settled the case. I have yet to hear from any AD or commissioner that wants to take this thing to trial, especially given Wilken’s already well documented suspicion of NCAA bylaws governing “amateurism.”

So if the NCAA goes to court, they probably lose. If they lose, they could lose roughly a gazillion dollars. The folks who are involved in the day to day of college athletics appear to overwhelmingly not want to go to court. So why on earth would a university president potentially want to ditch the settlement?

One possibility, suggested to me from a few industry professionals over the weekend, is just plain ol’ hubris. Insulated from public opinion and the new legal realities from the ivory tower of higher education, there could be some longtime presidents who are simply unwilling to accept the vestiges of the previous era of amateurism are dead, no matter the costs. I do not know every university president in the P4, so I can’t speak to that thinking personally, but it’s worth at least considering.

But this could also be part of a specific, although highly risky, legal strategy. If the NCAA and power conference leaders can’t create a quasi-CBA and labor peace via an antitrust settlement, and if they’re unwilling to waiver on employee status and create a CBA via actual collective bargaining….they could actually want to roll the dice and take their chances with the Supreme Court. 

Yes, the same Supreme Court that ruled against them 9-0 in Alston.

Here, via Sportico’s great Michael McCann, no NCAA apologist himself, on the potential gambit:

The longest the legal process stretches out, the more unknowns enter the equation. Clarence Thomas is 76 years old, Samuel Alito is 74 and Sonia Sotomayor is 70. If a final SCOTUS hearing on NCAA antitrust challenges happens in, say, 2028…could the court look very different from how it did in Alston? For that matter, will a new president and new lawmakers decide to finally take up college sports regulation in Congress? Could the NCAA secure an antitrust exemption and more school-friendly legislation if, say, Republicans win the presidency and control of the Senate?

I mean, shoot, maybe! I can’t predict who is going to win football games next week, let alone how the Supreme Court will be composed or rule five years in the future.

A settlement in House wouldn’t solve all the NCAA’s legal problems in the short or long term. It says nothing about employment status, might not completely protect the NCAA from future antitrust litigation, and depends on enough athletes actually opting in. It would also require significant concessions (financial and ideological) from member institutions.

From my perspective, I’d still do everything I could to salvage that settlement…but I’m a sportswriter…one who is already skeptical of amateurism, who doesn’t have a .edu email address, and whose ability to pay my mortgage has nothing to do with balancing an athletic department budget. I can understand how somebody in a different chair, with different political and professional constituencies, might reach a different conclusion.

But the stakes couldn’t be higher. If the NCAA gambles on going to court again and loses, the organization could go bankrupt. Even if they win, what that victory looks like remains deeply uncertain.

I don’t know enough to say whether public (or leaked) statements suggesting a settlement is impossible are emotional outbursts, negotiating tactics, or higher education executives being dead serious. We’ll know more in a few weeks.

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EXTRA POINTS BOWL WATCH LIST…WHO IS GOING TO CANTON?

Yeah yeah yeah there have been a bunch of FBS games so far, Notre Dame lost to Northern Illinois, we’ll get to all of that, I promise. But the D-III season also kicked over the weekend, which means THE MARCH TO THE EXTRA POINTS BOWL HAS BEGUN.

In case you somehow missed this, this humble newsletter is sponsoring an actual bowl game, featuring teams from the Ohio Athletic Conference and the President’s Athletic Conference, at the Tom Benson Hall of Fame Stadium on Nov 23.

The champion of both of those leagues will get a bid to the D-III playoffs, so they won’t be playing in our game. It’s also possible that the conference runner-up could secure an at-large bid, although even with D-III playoff expansion, those are few and far between.

The preseason OAC favorites, in order, were Mt. Union, John Carroll, Marietta and Baldwin Wallace. The Mt. Union Raiders opened their season with a 55-6 win over Ferrum, Baldwin Wallace knocked off Wittenberg, and Marietta crushed St John Fisher….but John Carroll lost to fellow D-III power Wisconsin Whitewater, 34-7.

On the PAC side, Grove City topped the league preseason poll, followed closely by Carnegie Mellon. Washington & Jefferson, Case Western Reserve University and Westminster College rounded out the top five. All the top five teams comfortably won their first game, except for Westminster, who was on a bye.

So who will we get in the first ever Extra Points bowl? Marietta vs Carnegie Mellon? Case Western vs Baldwin Wallace? John Carroll and Grove City?

WHO KNOWS?!? The season just started. BUT WE’LL BE TRACKING THE ACTION HERE, EVERY WEEK.

Also, we’re very very close to being able to make some announcements about the game. If you’re a brand/organization that would like to be involved in the game, we’re looking for a few more gift bag sponsors, as well as companies/organizations to attend our tailgate. Drop me a line at matt@extrapointsmb.com and let’s talk.

Here’s what else we’re reading here at Extra Points HQ:

I’ll see you in your inbox again tomorrow. We’ve got another fun week planned….