In a recent Sportico article, the publication discusses the rebuttal brief filed by attorneys Jeffrey Kessler and Steve Berman in defense of the NCAA’s proposed House settlement.

But there’s one big problem:
Their brief doesn’t actually respond to the key issues raised by objectors.

Instead, they just keep repeating that the deal is “fair, reasonable, and adequate” — but without explaining why. It's as if their entire argument is:

 -"It’s fair because we say it is." 🤷‍♂️

🔔 Reminder:
Class action settlements are supposed to benefit ALL class members. No one is supposed to be harmed. Yet Kessler’s remarks — and the brief — ignore the harm to walk-ons, non-scholarship players, and others. That harm appears to be traded away in favor of a payout.

That’s not fairness — that’s a payout deal that leaves MANY behind.

🔍 Why Kessler & Berman’s Rebuttal Doesn’t Hold Up
 
⚠️ 1. They Downplay Core Antitrust Issues as “Procedural Noise”
Kessler and Berman call objections a “rehash.” But the real issues — roster caps and price ceilings — go straight to the heart of the case.

🔸Athletes who were denied fair market compensation are now being told their new compensation is capped at 22% of revenue. 💰
🔸Roster caps are added as a condition to access that pay — another restriction, not a liberation.

🔄 Instead of removing barriers, the settlement repackages them.

 
🧩 2. A “Revenue-Sharing Cap” Is Still Price-Fixing
The 22% cap is being celebrated — but let’s be real:

🔸It’s a fixed ceiling, agreed on by direct competitors.
🔸It’s not based on competition — it’s the result of collusion.

No matter how it’s labeled, it’s price-fixing — and it violates the very antitrust principles this case is supposed to enforce.

 
🚫 3. Roster Caps Hurt Walk-Ons & Shrink Opportunities
Kessler claims the new roster limits won’t reduce access. But:

🔸Most FBS teams carry 115–130 players, including walk-ons.
🔸The settlement caps football rosters at 105.
🔸Walk-ons — who already don’t receive scholarships — are most at risk of being cut. 😕

This isn’t just a reshuffle — it’s a loss of opportunity and a restriction on who gets to compete.

⚖️ 4. “The Court Can’t Change It” Isn’t a Defense
Kessler argues Judge Wilken can’t modify the deal — only accept or reject it.

🛑 But here's what they don’t mention:

The parties themselves CAN revise the settlement — and courts send parties back to make revisions all the time.  ⚠️ It’s shocking that the parties refuse to consider any changes, not even grandfathering in current athletes who are being harmed. That raises serious concerns about due process rights being trampled for some class members.

📚 5. Title IX Dismissal Ignores Legal and Ethical Responsibilities
Kessler and Berman brush off objections based on Title IX, claiming it doesn’t apply to how damages are distributed in an antitrust case.

But this argument is unsupported by precedent — and dangerously dismissive.

🔸In fact, the Department of Education previously indicated that direct payments from schools to athletes may fall under Title IX scrutiny.
🔸The reality is: ~75% of the money is going to male athletes, primarily football players — and that raises serious red flags about equity and fairness under Rule 23 and civil rights law.

Their refusal to even acknowledge a potential violation or imbalance shows a troubling disregard for the law’s evolving role in protecting gender equity. Simply saying “Title IX doesn’t apply” doesn’t make it so — and doesn’t relieve the court of its duty to consider how this distribution impacts female athletes now and in the future.

 
🧱 6. “Not Ideal” Doesn’t Mean “Good Enough”
Their final fallback? “It doesn’t have to be perfect — just adequate.”

But that’s a low bar, and it:

🔸Minimizes real harms to athletes excluded by the deal ❌
🔸Fails to pursue the best feasible outcome for the class
🔸Undermines the purpose of antitrust law — to restore open markets, not endorse cartel compromise 🏛️
 
📝 Final Thought
Kessler and Berman want a fast approval of this deal. But their reply brief — as we read it in the Sportico article — dodges critical objections, offers no justification for harmful terms like roster caps, and asks the court to approve it all on faith alone.

Athletes deserve more than a check.
They deserve a system that reflects real competition, real equity, and real fairness.🤝