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On Wednesday, October 29, 2025, current and former female student-athletes filed an opening brief in the US Court of Appeals for the Ninth Circuit seeking to reverse Judge Claudia Wilken's approval of the House v. National Collegiate Athletic Association (NCAA) settlement (as discussed in previous Client Alerts1). As a reminder, the House v. NCAA settlement paid out $2,800,000,000 in damages to qualified Division I athletes for compensation loss caused by the prior prohibition on third-party compensation for use of athletes' name, image, or likeness ("NIL") and their athletic services.2 The settlement also resulted in ground-breaking changes in NCAA rules that now enable NCAA schools to share their athletic revenues with Division I college athletes for the first time, and also eliminated NCAA limits on scholarships.3 Athletes now argue that the settlement does not comply with Title IX.4 The athletes also argue that both the damages and injunctive relief of the settlement violate Title IX's prohibition on sex-based discrimination.5
Athletes Argue that Disproportionate Allocation of Damages Violate Title IX
In their brief, the athletes contend that damages given to student-athletes by institutions that receive federal funding (including any education program or activity involving intercollegiate athletics) qualify as forms of financial assistance and benefits under Title IX.6 As a rule, financial assistance and benefits are required to be provided on a proportional basis to members of both sexes under Title IX.7 In the settlement, male student-athletes received 96% of damages compared to female student-athletes who received 4%, which the athletes argue reveals a clear violation of Title IX in determining the settlement's damages and calculations because actual participation rates in the settlement were 53% male and 47% female.8
First, the athletes argue that the damages model used in the settlement was based on a hypothetical "but for" world that deliberately excluded legally binding Title IX considerations, leading to an allocated 90% of payments to men.9 According to the brief, Plaintiff's experts were told to exclude Title IX from their damages models.10 Second, the athletes argue that settlement was based on the false assumption that athletic conferences, rather than universities, would make payments to student-athletes and thus wrongfully concluded that Title IX did not apply.11 Lastly, the athletes argue that Title IX concerns and guidance mentioned in NCAA v. Alston were ignored.12 As a result, the athletes claim a violation of Title IX and Rule 23's requirement for fair and adequate representation of all class members, particularly the Female Subclass.
Exclusion of Title IX from the Damages Model
The athletes raise three issues regarding the damages model used in the settlement. First, it is alleged that the damages model used a Broadcast NIL ("BNIL") formula that lacked any economic foundation since the "but for" world disregarded the legal realities of Title IX.13 Specifically, the brief states that the BNIL formula lacked economic foundation because it incorrectly assumed that conferences instead of universities would make direct payments to student-athletes rendering Title IX inapplicable, presumed universities would allow conferences to make payments to student-athletes, and was based on unsupported grounds that 10% of broadcast contract value is attributable to NIL.14 Second, the BNIL was attacked for having violated Title IX by tying student-athlete compensation to market value, which the athletes argue contravenes the statute and legislative history of Title IX that requires men and women to receive equal treatment regardless of the revenue their sports generate.15 Lastly, the BNIL was criticized for undervaluing women's sports by relying on regular-season broadcast agreements that have institutional biases, while also disregarding the structure of postseason media contracts and corporate sponsorships.16
Impact on Injunctive Relief
As for the settlement's injunctive relief, $20.5 million was ordered to be given directly to student-athletes in annual injunctive relief payments.17According to the brief, 90% of the compensation goes to male student-athletes with less than 10% going to female student-athletes, representing sex-based discrimination under Title IX.18 The revenue sharing framework for injunctive relief was based on the same BNIL formula as the damages allocation.19 The athletes argue that relying on the same formula codifies disparities rather than remedying them.20 The athletes also contend the injunctive relief has already had a disparate impact on the Female Subclass in the settlement because it created financial incentives for universities to reduce or eliminate forms of support (like Alston awards), leading to the redirecting of funds to "revenue-producing" men's sports.21 Lastly, the athletes believe that the distribution plan narrowly defined revenues included in the benefits pool, such as student fees and institutional support, to avoid linking revenues to federal funding in order to avoid triggering Title IX compliance.22
Title IX Claims Release
The settlement also includes a release of Title IX claims "arising out of or relating to the distribution of the Gross Settlement Fund," effectively barring female athletes from challenging the inequitable allocation of both damages and injunctive relief.23 The athletes argue that such a release is overbroad, unenforceable, and a violation of due process because it forces female athletes to waive their statutory rights that were not litigated in the underlying antitrust action.24 In essence, their concern is that civil rights protections can be waived through unrelated litigation, undermining the structural integrity of Title IX.25
What's Now at Stake: The Future of NIL in College Sports
The appeal puts into question whether the settlement, which was meant to remedy current and former student-athletes, is at stake of being overturned for violating Title IX. If the Ninth Circuit Court agrees with the athletes, the settlement would be reversed, effectively restoring the traditional model of athletic amateurism and reopening the antitrust actions. Such a result would lead to no active compensation remedy for any current or former student-athletes. Regardless of how the Ninth Circuit may rule, the Ninth Circuit Court also has an opportunity to answer the question of whether revenue sharing payments must be equal between men and women under Title IX.
Footnotes
1. The NCAA'S Game Changing Antitrust Settlement: Updates Following a Long Procedural Battle.
2. Id.
3. Opinion Regarding Order Granting Motion for Final Approval of Settlement Agreement, In Re College Athlete NIL i.igation, No. 20-cv-03919 CW (N.D. Cal. June 6, 2025).
4. Appellants' Opening Brief, House v. NCAA, No. 4:20-cv-03919-CW (9th Cir. Oct. 30, 2025).
5. Id. at 23-24.
6. Id. at 3-6.
7. Id. at 3-4.
8. Id. at 4.
9. Id.
10. Id.
11. Id. at 29.
12. Id. at 33.
13. Id. at 35.
14. Id. at 37-38
15. Id. at 38-39.
16. Id. at 41-42
17. Id. at 43.
18. Id.
19. Id. at 44.
20. Id.
21. Id.
22. Id. at 44-45.
23. Id. at 55-56.
24. Id. at 54-57.
25. Id. at 7.
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