Already seeing their college athletic opportunities limited by a growing reliance by college coaches on the transfer portal, high school athletes, especially those outside of the elite category, could soon face an even bigger obstacle to competing on the next level through the potential elimination of as many as 25,000 roster spots in Division I athletics. The impact will eventually filter down to Division II and Division III athletics, as junior college sports.

This is the potential trickle down impact of the vast of monetization of college athletics and its adoption to recruiting of high profile athletes via NIL (Name, Image, Likeness) deals. While a growing number of high profile athletes are earning millions of dollars on the college level, college athletic programs are making huge cuts in other areas to fund their NIL programs for revenue generating sports.

In this special report for High School On SI, attorneys Douglas DePeppe and Brandon Leopoldus take a deep dive into the fallout from a proposed multi-billion dollar settlement of a class action lawsuit brought by certified classes of Division I athletes against the NCAA, over its past prohibitions against allowing college athletes to profit from their Name, Image and Likeness.

Special to High School On SI
by Douglas DePeppe and Brandon Leopoldus

The ongoing mania about college sports and athlete NIL compensation has largely missed a significant travesty about to impact a substantial number of Olympic Sport athletes. A federal judge is set to approve a sweeping, multi-billion-dollar settlement between the NCAA and certified classes of D1 college athletes arising from NCAA prohibitions against NIL monetization by college athletes. The upshot from this lawsuit and proposed settlement will be a complex new system of NIL payments from D1 universities to their athletes, although nearly all of the money will go to just three revenue-producing sports (football, men’s basketball and women’s basketball). Yet, a different aspect of the proposed settlement – roster caps for all D1 sport teams – has not received adequate attention.  An analysis by ESPN online magazine asserts that as many as 10,000 D1 roster spots, across all NCAA sports, could be lost! Further, it is unknown whether smaller D1 schools will drop certain nonrevenue sports altogether. Our analysis suggests the athlete cuts at D1 schools could be as high as 25,000.

Whether roster caps remain will depend on the judge’s final approval later in the spring of 2025. The uncertainty is not only creating turmoil in college sports presently, it is also creating a logjam among high school seniors who are stymied by befuddled college coaches. Until the court resolves the proposed settlement, college rosters and recruiting will remain in limbo.

According to reports, D1 football and men’s basketball stand to receive 90 percent of the revenue sharing resulting from the proposed settlement. Shamefully, a heretofore hidden pool of D1 athletes disregarded in the lawsuit is emerging as the forgotten and unrepresented class of the settlement: D1 nonrevenue athletes who will be harmed by the proposed settlement’s roster cap provisions. 

For context, there are more than 190,000 men and women athletes across all D1 sports. There are greater than 350 universities participating in D1 sports (reportedly as many as 365), with a total of 18 sports for men, 20 sports for women, and a combined sport (rifle), totaling 39 sport programs sanctioned by the NCAA at the D1 level. A 25,000 loss of roster spots would amount to a 13 percent cut from 190,000 D1 athletes.

While primary media attention has been focused on the proposed settlement’s allowance for athletes to benefit from new NCAA revenue sharing arrangements, there should be greater scrutiny of who is actually getting harmed from the terms of the settlement. D1 athletes, in any sport, are statistically in the top 2 percent of this country’s athletic talent. Yet, large numbers will be told that their university has no place for them in 2025 because of roster and budget cuts that are triggered by the proposed settlement.  

How elite is the general D1 athlete pool? Take note that 75 percent of Team USA at the 2024 Paris Olympics were current or former college athletes, with over 80 percent of the USA medalists having competed collegiately! These elite athletes were predominantly from nonrevenue college sports. Yet, despite the nonrevenue shade cast upon them from the proposed settlement, “Olympic Sport” athletes in D1 universities are a critical talent pool for the country’s dominant performances at Olympics and World Championships. Inexplicably, this elite 2 percenter talent pipeline is now at risk because of the pending NCAA antitrust settlement that is being readied for court approval by early April 2025. At particular risk are the younger freshmen athletes who may have been redshirted or possibly were walk-on athletes.

The following table illustrates the elite performances of Team USA athletes at the 2024 Paris Olympics, in correlation with raw numbers of D1 athletes in several medal-leading sports.

Despite the Team USA-leading 34 Olympic medal count, Track & Field (and D1 Cross Country), with a combined 34,083 D1 athletes on NCAA rosters, do not generate sport revenue for their universities, in the aggregate as a college sport. Swimming and Gymnastics athletes, the next most medals in Paris, also do not generate notable NCAA sport revenues. Baseball, soccer, tennis, volleyball and some other sports are mainstream, high participation sports among America’s youth, but at the college level they do not presently generate significant revenue for their universities. Indeed, the majority of the 190,000 NCAA D1 athletes participate in nonrevenue sports.

It is the production of revenue that has enabled the D1 football players (about 18,518 in FBS and 14,837 in FCS) to become the main beneficiaries of the revenue sharing terms of the proposed settlement. That is because the federal court certified certain classes of athletes who represent the interests of all D1 college athletes in the certified class. Similarly, men’s D1 basketball players (about 5,607 athletes) are part of the certified class; and women’s D1 basketball players (about 5,048 athletes) constitute another certified class. Yet, possibly as many as 25,000 nonrevenue sport D1 athletes will more than miss out on NIL revenue sharing, these two-percenter elite athletes are being unceremoniously ousted from their college rosters by the roster caps imposed under the proposed settlement. This predicament for such a large quantity of elite D1 athletes illustrates a distasteful and unintended negative consequence of the proposed settlement.  

The shedding of large numbers of elite athletes across D1 sports is inappropriate and requires further inspection. As noted above, the harm can also be projected into the future, as high school seniors are losing a pathway into D1 sports. Yet, in the original NCAA antitrust lawsuit Complaint, it specified that the NCAA’s practices affect “all student-athletes” and sought to protect student-athletes “from commercial exploitation.” Within the classes of athletes specified in the lawsuit there may be the ingredients for a solution.

The Complaint emphasized that many student-athletes come “from socio-economically disadvantaged backgrounds” and were being “deprived of the educational opportunities and economic benefits that the market would pay.”  However, the proposed settlement creates harm to these exact same student-athletes in a manner that is likely antithetical to antitrust law. The proposed settlement would implement roster caps that could eliminate opportunities for thousands of D1 athletes, particularly in Olympic (“non-revenue”) sports. Because of this, the proposed settlement does not adequately represent the interests of all class members given that the preliminary settlement defines multiple settlement classes including an “Additional Sports Class” covering all Division I athletes outside of football and basketball.

The settlement’s focus on providing monetary benefits primarily to football and basketball players while potentially eliminating opportunities for other athletes through roster caps creates a new form of anticompetitive restraint. As it currently stands, the proposed settlement terms will take roster spots (and therefore the opportunity to earn scholarships and NIL compensation) from thousands of student-athletes in order to send checks principally to those playing football and basketball. 

The settlement will perpetuate inequitable treatment between athletes from revenue and non-revenue sports, and does so despite these exact same athletes being members of a subclass of plaintiffs defined as the “Settlement Additional Sports Class” that includes all D1 student-athletes outside of football and basketball who competed between 2016-2024.  The disproportionate harm suffered by these student-athletes is significant as roster reductions will deprive them of the collegiate experience while receiving minimal benefits from the settlement.

This glaring failure to represent the best interest of this class of student-athletes raises significant questions about whether their interests were adequately represented in the settlement negotiations.

Further, the settlement’s structure may effectively create a new form of anticompetitive restraint by forcing schools to reduce athletic opportunities in order to fund payments to a small subset of athletes. This appears to conflict with the NCAA’s stated goal of creating “a safe, and equitable environment that allows student-athletes to reach their full potential in academics, athletics and life.”  Instead, it seems like the NCAA and those representing the football and basketball players in the class of plaintiffs are eager to erase tens of thousands of opportunities for one class of D1 athletes in exchange for a check to a different class of D1 athletes.

The court has only issued a preliminary approval of the proposed settlement. More inspection by the court, and opportunities for unrepresented athletes to oppose the proposed settlement remain briefly available. Additionally, beyond the courtroom, there is urgent need to expose the unfairness of athlete cuts that has already started. While many complain about the pay for play influences and demise of college sport, more sunlight needs to fall upon the NCAA and athletic directors with their knives out priming to cut nonrevenue sports rosters.

Doug DePeppe is a data rights attorney who has also focuses on NIL and sports law with Buchalter Law in Denver, Colorado. Brandon Leopoldus is a sports law attorney who also teaches antitrust law. His law practice is Leopoldus Law in Los Angeles.