College Sports Commission Goes Live as NCAA Era Enters New Phase
A new chapter in college sports began on June 6, when U.S. District Judge Claudia Wilken granted final approval to the House v. NCAA settlement. This landmark $2.8 billion agreement will fundamentally reshape the structure of Division I athletics.
Among the most significant developments is the creation of the College Sports Commission (CSC), an independent regulatory body created by the “Power 5” conferences (ACC, Big Ten, Big 12, Pac-12, and SEC) and tasked with reining in Division I athletics. The CSC will be the central enforcement arm in this new era and will report to the Power 5 conference commissioners.
According to the CSC’s website, the organization will oversee all enforcement of the House settlement terms including “Revenue Sharing,” “Name, Image and Likeness Deals,” and “Roster Limits.” The CSC states that the NCAA “remains responsible for enforcement of rules not created in connection with the [House] settlement.”
Primarily, the CSC will oversee compliance with institution revenue sharing with student-athletes. Beginning July 1, participating institutions can directly pay athletes up to $20.5 million in the 2025-26 academic year through a revenue-sharing pool. The amount is scheduled to rise annually and expected to reach nearly $33 million by 2035. All Power 5 conference participants are automatically participants in revenue sharing. Other institutions have a June 30, 2025, deadline to “opt in” to revenue sharing to participate in direct student-athlete payments. Importantly, “revenue sharing” preserves the non-employee status of student-athletes — at least for now.
Additionally, the CSC’s influence extends beyond revenue sharing. The organization will oversee NIL compliance through NIL Go, a new system that requires all third-party NIL deals exceeding $600 to be submitted for review. Run in partnership with the accounting firm Deloitte, NIL Go will evaluate whether reported deals meet fair market value standards. If not, deals will be flagged and may be subject to CSC discipline.
With the House settlement eliminating scholarship limits, the CSC will oversee institution compliance with new sport-specific roster limits. This will include oversight of “designated student-athletes,” current athletes and recruits who will receive roster protection and not count against the new roster limits.
On July 6, the CSC named Bryan Seeley, a former U.S. Department of Justice attorney and MLB’s head of investigations, as the organization’s first CEO. With a background in high-profile compliance cases (including MLB’s sign-stealing and salary circumvention probes), Seeley will lead the CSC through uncharted terrain. His message: The time for clarity and enforceable rules is now. “The schools that signed on want rules and want them enforced,” Seeley said. “This is a new starting point.” And there’s a lot to enforce.
Uncertainty remains, as industry insiders question whether the system can truly rein in booster-funded collectives. In particular, whether NIL Go will be enforceable and discourage under-the-table deals. Still, the CSC has authority that the NCAA has long lacked, and schools are expected to sign formal participation agreements to abide by its rulings.
By creating the CSC, Power 5 conferences have created their own watchdog—and given it real authority.
Why it matters: For the first time, college athletes will receive direct compensation from their institutions. That shift, combined with NIL oversight and roster restructuring, is meant to bring order to what many had described as the “Wild West” of college sports.
As CSC enforcement ramps up and schools navigate the first year of revenue sharing, legal and legislative questions remain — including Title IX concerns, state law conflicts, and federal efforts to codify the system.
The Jackson Lewis Education and Collegiate Sports Group will continue to monitor developments with the CSC as new issues will arise in implementation, enforcement, and challenges to these new standards in collegiate sports. Please feel free to reach out to any member of the Education and Collegiate Sports Practice Group with questions.
NCAA NIL Settlement Reshapes College Athletics and Athlete Payments
The NCAA and Power Four conferences entered into a final settlement agreement (the Settlement) on June 6, 2025, resolving several pending lawsuits brought by college athletes over the use of their name, image, and likeness (NIL). These cases were combined into one called In re College Athlete NIL Litigation. The Settlement significantly changes the landscape of NIL rights and college athletics overall.
The Settlement includes several key provisions, including payments to current and former Division I athletes, revenue sharing, roster limits, and a new enforcement entity responsible for ensuring schools and athletes comply with NIL rules.
Back Payments to Former Athletes
The Settlement includes payment of $2.8 billion in damages to be paid over 10 years to certain former Division I athletes who played collegiate sports before NIL compensation was allowed in 2021. These payments are intended to compensate student athletes for revenue they could have earned if the previous prohibition on NIL and revenue sharing was not in place.
Direct Payments and Revenue Sharing
Under the new framework, student athletes can be paid directly by their schools using funds from a compensation pool. This pool is based on 22% of the average annual revenue of all participating institutions, estimated at $20.5 million in 2025. The pool will increase by 4% each year. Each school will use its portion of the pool to pay athletes across all sports and decide how to distribute the funds.
Elimination of Scholarship Caps
The Settlement removes limits on how many scholarships schools can grant per sport, allowing them to offer an unlimited number. However, any scholarship exceeding the old NCAA limits will count against a school’s compensation pool at the full cost of attendance. Scholarships offered within the previous NCAA limits will not reduce the school’s pool.
Introduction of Roster Limits
While the Settlement removes scholarship limits, it also imposes roster limits. The new roster limits allow schools to offer full or partial scholarships to all athletes on a team, rather than being limited to a fixed number of scholarships per sport. The issue of roster limits and its harm to current student athletes resulted in a delay of the final settlement approval. A provision was included to protect current athletes who may have lost roster spots due to the Settlement, allowing them to use the rest of their eligibility without penalty.
New Oversight and Reporting Platform
The Settlement requires the NCAA and Power Four conferences to establish an enforcement entity. This led to the creation of the College Sports Commission, which will be responsible for enforcing rules on roster limits, revenue sharing, and third-party NIL deals. The specific enforcement procedures will likely continue to evolve following the Settlement.
The College Sports Commission is expected to work with Deloitte to manage a new platform called NIL Go, which handles reporting and vetting third-party NIL deals. This platform will serve as a clearinghouse to vet any NIL agreements over $600 involving entities like boosters and collectives.
The Settlement introduces significant changes to college athletics and NIL, but it does not settle all outstanding issues. Whether student athletes should be considered employees by their schools and whether student athletes have the right to collectively bargain still needs to be decided.
Maine Gambling Control Unit Issues Warning on Illegal Online Gaming Including Certain Sweepstakes Models
Maine’s Gambling Control Unit (GCU) has issued a formal warning regarding the proliferation of illegal interactive gaming (“iGaming”) platforms operating within the state. The warning emphasized that while certain forms of online gambling—such as advance deposit wagering, fantasy contests, and sports betting—are legally permitted and regulated in Maine, online casino-style games remain strictly prohibited. This includes games like slots, blackjack, and roulette when played for real money. The warning goes on to state: “Of particular concern are so-called “sweepstakes” or “social casino” sites that may offer real-money payouts, dual-currency systems, or prizes such as gift cards. These platforms are not licensed or overseen by the GCU.”
The warning further notes that numerous unregulated entities continue to target Maine residents, offering illicit iGaming opportunities and that these operations, often based out of state or out of the country, include sites that may appear legitimate but lack any regulatory oversight in Maine. The GCU further warns that no online casino, iGaming, or sweepstakes site is licensed by the GCU. It encourages people to avoid these websites and cautions that patrons who choose to engage with these unlicensed platforms do so at their own risk.
This is the latest in a string of state actions focusing on social casino sweepstakes and related sites. We recently posted about recent actions taken against social casino sweepstakes by the NY AG.
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House v. NCAA Settlement: More Questions Raised than Answered
On June 6, 2025, a U.S. District Judge in the Northern District of California approved the long-anticipated and landmark $2.576 billion settlement in House v. NCAA, transforming the landscape of college sports. Following the U.S. Supreme Court’s Alston decision (which held that student-athletes were entitled to up to $5,980 in cash-equivalent education related compensation per year), the House settlement resolves three consolidated antitrust lawsuits brought by student-athletes against the NCAA.
In House, the plaintiffs, who are current and former Division I student-athletes, sued the NCAA and several conferences, asserting they were injured financially due to restrictions on their right to be compensated for the commercial use of their name, image, and likeness (“NIL”) and the prohibition on schools or conferences to engage in revenue sharing with student-athletes. Three classes of student-athletes for the period of June 15, 2016 through September 15, 2024 were proposed and approved. Those classes are: (1) the Football and Men’s Basketball Class, where the student-athlete received a full scholarship and competed for a Power Five school (or the University of Notre Dame); (2) the Women’s Basketball class (same additional factors); and (3) the Additional Sports Class, for all other sports, where the student-athlete was declared eligible to compete for any Division I athletic team.
As the District Court stated in its opinion approving the settlement agreement (the “Settlement”), the Settlement “will result in extraordinary relief . . . [and] permit levels and types of student-athlete compensation that have never been permitted in the history of college sports, while also very generously compensating Division I student-athletes who suffered past harms.” The Settlement includes the following key provisions:
Back Payments: The Defendants have agreed to provide $2.75 billion in payments to student-athletes, allocated as follows:
$71.5 million to Football and Men’s Basketball Classes for injuries resulting from not receiving compensation for their NIL being used in video games;
$1.815 billion to Football and Men’s Basketball and Women’s Basketball Classes for injuries resulting from a failure to receive a share of revenue from broadcasting profits;
$89.9 million to all Classes, where the student-athlete received third-party NIL payments after June 2021 (when it became permissible to receive NIL payments through third parties), for lost opportunity damages; and
$600 million reserved for all Classes for student-athletes with a pay-for-play claim (i.e., that the NCAA’s prohibition on the ability to pay student-athletes for athletic services violates antitrust laws) as follows:
95% reserved for Football, Men’s Basketball, and Women’s Basketball Classes (allocated 75%/15%/5% respectively); and
5% for Additional Sports Class, for those student-athletes receiving at least a partial scholarship from 2019-2020 forward.
Direct Revenue Sharing Payments to Athletes: Starting this fall, NCAA Division I schools can opt into directly making revenue sharing payments to student-athletes, with a cap initially set at $20.5 million per school. The revenue sharing amount is calculated as 22% of the Power Five schools’ average athletic revenues per year, estimated at $20.5 million per school in 2025-2026 and estimated to be $32.9 million by 2034-35.
Additional NCAA Rule Changes: Multiple other NCAA rules were eliminated to facilitate the Settlement and the related payments and benefits. The Settlement also required various modifications to the NCAA’s rules, which will apply only to those Division I schools that opt-in to revenue sharing. Important changes include:
Elimination of scholarship limits for any sport;
Changes to the roster limits for all sports, excluding any current student-athletes who are members of the Classes in the lawsuit; and
The NCAA can still prohibit the provision of NIL payments to student-athletes by “associated entities or individuals” who are not providing the payments for a “valid business purpose.”
While the Settlement is nothing short of industry-changing, the Settlement’s impact on other laws applicable to intercollegiate athletics remains untested and unknown.
For example, it remains an open question how and whether courts will apply Title IX to revenue sharing models where schools opt-in, including whether courts will deem the provision of such revenue to student-athletes as athletic financial aid or an athletic benefit—two separate requirements under Title IX with significantly different standards.
In its June 6, 2025, opinion, the District Court noted that those objecting to the Settlement “have cited no authority that Title IX applies to damages awards distributions,” and further explained that “the Court cannot conclude that violations of Title IX will necessarily occur if and when schools choose to provide compensation and benefits to student-athletes pursuant to the [Settlement].” The Court then stated, “schools will be free to allocate those benefits and compensation in a manner that complies with Title IX,” and if they do not, “class members will have the right to file lawsuits arising out of those violations.”
The Settlement concerns only Division I athletics; questions remain as to how (if at all) the NCAA will alter its rules for Division II and III athletics. The significant difference in divisional rules is of particular concern for those schools that sponsor sports that compete in different divisions.
The Settlement also does not consider what effects these changes will mean to the status of student-athletes, with the District Court holding, simply, “[t]he question of whether student-athletes are employees who can unionize and engage in collective bargaining is not one for adjudication and resolution in this litigation.” The employee benefit and tax implications related to such payments also remains open to potential challenge.
Another open question relates to international students-athletes and their ability to share in revenue sharing models. The settlement classes are not defined in a manner that limits damages payments to only U.S. citizens, but the ability to provide international students payments or revenue sharing into the future remains highly complex, as a specific visa status may be required to receive such payments.
Further still, the manner in which the NCAA will alter, change, and interpret its rules surrounding the prohibition of NIL payments remains untested. The NCAA initially prohibited all forms of NIL compensation by third parties but has now agreed to a rule where it prohibits only those payments from “associated entities and individuals” (which include donors and collectives) providing payments for reasons that are not a “valid business purpose” related to “the promotion or endorsement of goods or services provided to the general public for profit.” The NCAA has previously placed significant restrictions on the level of collaboration that is permitted between schools and collectives, and it is unclear how the prohibition against NIL payments by “associated entities and individuals” will be construed.
In all, House marks a complete shift in the business of college athletics. Schools must consider a host of legal issues that will surround their implementation of the Settlement and any revenue sharing arrangements moving forward.
It is anticipated that certain student-athletes may appeal one or more aspects of the Settlement.
To the extent you have more questions about the House Settlement, drafting revenue sharing or NIL agreements, and the interplay of House with Alston, Title IX, immigration, employment, tax or other applicable law, please contact your Miller Canfield attorney or one of the authors of this alert.
NY AG Seeks to Shut Down Sweepstakes Casinos in NY
We have previously posted on some of the recent legal issues with social casino sweepstakes. See Social Casino Sweepstakes Model is Under Fire – What Game Companies, Payment Processors and App Stores Need to Know. Various states have taken action to shut down these apps in their states. The NY AG, working with the New York State Gaming Commission, allegedly identified 26 online platforms offering players slots, table games, and sports betting using virtual coins that could be exchanged for cash and prizes. On June 6, the NY AG announced that it has stopped online sweepstakes casinos operating in New York. This action follows cease and desist letters to operators dating back to March 7, 2025.
According to the announcement, New York law prohibits online platforms from offering gambling that involves risking something of value, including virtual coins that can be redeemed for cash or prizes. It adds that most sweepstakes casinos are illegal in New York.
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Next Era for College Athletics Begins as NCAA Implements $2.8B Settlement Agreement: Key Changes
The NCAA has announced “a new era” in college sports, touting “unprecedented” benefits for student-athletes following the U.S. District Court for the Northern District of California’s long-awaited approval of the $2.8 billion settlement in the House antitrust lawsuit against the NCAA and the “Power 5” conferences – the ACC, Big Ten, Big 12, Pac-12, and SEC that ends a bar on direct compensation to student-athletes.
Beginning July 1, 2025, institutions competing at the Division I level may provide direct compensation and benefits to student-athletes, subject to an initial cap of approximately $20.5 million and increasing annually based on revenue sharing across the Power 5 conferences. In addition:
Scholarship limits will be replaced with sport-specific roster limits. Student-athletes rostered or recruited this past academic year have some protections for their roster spots for the length of their eligibility.
Institutions have new reporting requirements. In the next month, institutions must submit a list of all student-athletes eligible for roster protection. Student-athletes must report all third-party name, image, and likeness (NIL) agreements valued over $600. After each academic year, each institution must report those student-athlete third-party NIL agreements as well as all NIL agreements and other benefits the institution provided directly to student-athletes and their families.
Rules and procedures for enforcement of these new terms are still developing. However, the NCAA will not be the enforcement body. The Power 5 conferences have established a new College Sports Commission for enforcement of the House settlement terms. Disputes over enforcement – such as student-athlete eligibility and institutional violations – are subject to mandatory expedited arbitration, before designated arbitrators, with binding resolutions within 45 days.
This April, in anticipation of the court accepting these terms, the NCAA’s Division I Board of Governors adopted changes that eliminated more than 150 rules from the Division I 2024/25 Manual. The NCAA will still enforce rules not impacted by the House settlement.
The House settlement provides clear parameters for student-athlete compensation in many ways, but questions still remain. Institutions should expect legal challenges on a number of related issues, including how Title IX will apply to student-athlete compensation, whether student-athletes are employees of their institutions, and limits on student-athlete eligibility, among others.
With Student Athletes’ Individual “Brands” Becoming a Commodity, Here’s What Universities Should Consider
In 2021, the NCAA upended its decades-long prohibition on student athletes’ ability to profit from their name, image and likeness (NIL). This means that student athletes now have, and will continue to market themselves as, a “brand,” i.e., an identity or personality that has intrinsic value, in part due to their association with school athletics. The landmark $2.8 billion proposed settlement in House vs. NCAA, currently pending approval in the US District Court for the Northern District of California, will establish guidelines for this revenue-sharing, including for NIL revenues, among schools and student athletes, further allowing students to profit off of their individual contributions to their team.
While many colleges and universities whose student athletes were marketing their NIL prior to the House settlement chose not to involve themselves in those arrangements, some institutions are now taking a second look. Because schools who choose to pay their student athletes will necessarily be involved in the monetization of an athlete’s NIL, it is increasingly important for them to understand the mechanics of NIL agreements and concerns that might arise as a result of a student athlete actively marketing themselves and partnering with commercial entities. Schools can then decide whether and how they will support student athletes in their relationships with outside entities participating in the athlete’s promotion of their “brand”—which in most cases necessarily involves their status as a member of a college team.
For example, colleges and universities might consider imposing restrictions on the types of products an athlete should promote and guidance (or advice) related to contract terms. Schools have an interest in restricting their student athletes from promoting products that may be harmful to their student body, such as alcohol, tobacco or gambling platforms. Schools might also encourage student athletes to bargain for autonomy that would allow them to reduce involvement or cancel partnerships, to protect both the student’s brand and the student’s academic and athletic priorities. Direct guidance on contract formation, or referrals to outside advisors, are two avenues by which schools can assist student athletes, and schools should weigh the costs and benefits of each approach.
Schools should also consider whether they want to restrict the use of their own branding in the athlete’s promotional endeavors media. Developing formal guidelines or approval processes that must be followed before a student athlete can create paid content in official school uniforms or using school logos is an approach that can help the schools create distance from undesirable third parties, avoid claims of discrimination or favoritism among student athletes and protect their own image and intellectual property.
Finally, student athletes are rapidly gaining popularity as social media influencers, and schools can provide support and guidance specific to this arena. A recent article from the New York Times illustrates this approach, highlighting the University of North Carolina’s partnership with social media management firm Article 41, which works to partner students with brands like Athleta and Uber for paid advertising opportunities. The article cites to a 2023 survey from the Keller Advisory Group, finding that there are 27 million paid social media influencers in the United States, with 44 percent of them doing it full time. With student athletes becoming entrenched in the world of paid content creation, adding to their already full plates of sports competition and schoolwork, colleges may be able to head off issues and encourage brand relationships that are holistically more beneficial to student athletes by providing support and guidance informing athlete-brand relationships.
More broadly, athletes and their schools alike would benefit from having a system in place to address social media blowback. Many student athletes are still teenagers, making them especially susceptible to harsh online criticism that is inevitable in the digital age. Having the tools to support student athletes manage such criticism would benefit universities and students alike by providing athletes with mental health resources and protecting the reputations of all involved.
Another consideration is whether colleges and universities should provide course credit to student athletes for their time developing and marketing their “brands.” Per the New York Times article, some athletes view their experience building a social media following as “akin to an internship.” With all the time student athletes already dedicate to sports and schoolwork, they may benefit from receiving some form of elective course credit for their time spent developing their personal “brands.” Structuring personal marketing as an educational experience has the added benefit of giving the school more influence as to how athletes approach and consider monetizing their NIL. Alternatively, schools could consider whether they should limit their athletes’ involvement in paid content creation to ensure they can continue to thrive in their sport and their studies.
As the landscape of NIL continues to evolve, colleges and universities—especially those who opt in to athlete compensation—should continue to strategize how to best support their students and comply with all applicable laws and regulations.
FTC Delays Enforcement of Click-to-Cancel Rule
Last November, the Federal Trade Commission (FTC or Commission) published its final click-to-cancel rule (the Rule), which requires sellers to make it as easy for consumers to cancel their enrollment into a service or goods plan as it was to sign up. As we discussed previously, the Rule prohibits sellers from misrepresenting any material facts and requires them to provide clear and conspicuous disclosures of material terms before obtaining billing information and charging consumers. Sellers must also obtain informed consent to a negative option feature (i.e., consumer silence or inaction construed as continuing acceptance) prior to charging consumers. The three sitting FTC commissioners – all Republicans – have now voted to extend the compliance deadline to July 14, 2025.
To review, prior to the end of the Biden Administration, the FTC commissioners voted 3-2, along party lines, to finalize the Rule, with Democrats – former FTC Chair Lina Khan, and former Commissioners Alvaro Bedoya and Rebecca Kelly Slaughter – supporting the Rule, and Republican Commissioners Andrew Ferguson and Melissa Holyoak opposing it. The Rule became effective in January, but regulated companies were given until May 14, 2025, to comply.
In a statement issued on May 9, 2025, the FTC delayed enforcement of the Rule by sixty days, citing concerns expressed during the rulemaking that the Rule’s complexities would take a “substantial amount of time to come into compliance.” The statement also noted that while “[t]he previous administration did not explain why [the earlier] deferment period was chosen … the Commission’s decision to defer enforcement necessarily acknowledged that compliance involved some level of difficulty.” The FTC also left the door open “to amending the Rule” to address any problems that the “enforcement experience exposes.”
Much has happened at the Commission since the Rule’s publication last year. With former Chair Khan’s resignation in January and the firing of the two Democratic commissioners in March, all commissioners who voted in favor of the Rule are now gone (two are suing the Administration), allowing Ferguson (now Chair), Commissioner Holyoak, and recently appointed Republican Commissioner Mark Meador, to approve extending the compliance timeframe.
Executive Orders and statements by the current Administration questioning the autonomy of independent agencies such as the FTC, and legal challenges to such efforts, make agency enforcement priorities, existing and proposed rules and regulations, and indeed the structure and organization of independent agencies, uncertain. The uncertainty is not limited to the FTC. As we wrote here, less than two weeks after the Consumer Product Safety Commission (CPSC) voted 3-2 to advance a safety standard for lithium-ion batteries, the three Democratic commissioners who voted for the proposed rule were terminated, and CPSC withdrew the proposal before it could be published in the Federal Register. Plans to fold the CPSC into the Department of Health and Human Services have also been reported.
The FTC and CPSC are two key agencies with authority over legal issues important to consumers and consumer brands. Advocates and companies are watching closely to see how government oversight of consumer and product safety regulation may change.
Important Considerations for Universities Awaiting House Settlement Approval
The ever-changing landscape of college athletics and name, image, and likeness (NIL) regulation is about to be shaken up once again. The historic House v. NCAA settlement is nearing approval and will drastically change the ways many universities, particularly in Division I, operate their athletic departments and engage with their student-athletes.
This settlement will accomplish three main tasks: (1) it will distribute over $2.5 billion to former players who participated in competitive Division I college sports from 2016-2024, (2) it will create a revenue-sharing model that will allow schools to compensate their student-athletes directly, and (3) it will attempt to establish more oversight and control over student-athlete NIL payments.
With these historic changes, universities should be prepared to take several critical actions to remain in-step with new NCAA requirements and related developments in the world of college athletics.
Opt In or Out
The named defendants in the suit, which currently include the PAC-12, Atlantic Coast Conference, Big Ten, Big 12, Southeastern Conference conferences, are automatically opted in to the settlement. Schools within those conferences, commonly referred to as the “power five,” must be ready to adhere to the terms of settlement for a ten-year period beginning on July 1, 2025.
This leaves non “power five” Division I schools with a decision to make about whether or not they wish to share revenue with their student athletes. Most Division I universities have already indicated whether or not they plan to “opt in” to revenue sharing. Schools who do choose to share revenue must do so according to the settlement terms, and must provide the NCAA a notice of intent to formally opt in by June 15, 2025. All schools (including those in “power” conferences) who opt in must be prepared to:
Ensure compliance with the revenue-sharing “pool cap” set by the settlement.
Comply with new reporting requirements on NIL licenses and payments.
Adhere to the roster limits established by the defendant conferences.
It is important to realize that schools who opt in are only doing so for that upcoming academic year, and every non-power five school in the NCAA will have the opportunity to opt in or out every year of the ten-year settlement period. Beginning in 2026-2027, those opting in for an upcoming academic year must do so by March 1 of the prior year.
Those who opt out of the settlement will largely continue to follow guidelines from the 2024-25 NCAA Division I Manual. This means last year’s scholarship limits will remain intact, and schools will remain prohibited from making direct NIL payments to student-athletes. However, all Division I schools will need to ensure that their student-athletes report all third-party NIL deals worth $600 or more.
Any school that provides payments or benefits to any student athlete in excess of what is permitted by the Division I Manual will be considered to have automatically opted in to the settlement agreement, and will be subject to the restrictions of the settlement agreement.
Consider Financial Impacts
The settlement has the potential to create significant financial consequences for athletic departments. The revenue-sharing model established by the settlement allows schools to spend up to $20.5 million—an expense they were not previously incurring—to pay their student-athletes directly during the 2025-26 academic year. In response to these increased financial demands, schools are actively exploring new revenue streams, including forming separate legal entities for their athletic departments and taking steps to ensure greater financial flexibility.
The draft settlement agreement itself notes that non power five schools may choose not to pay their student athletes the full $20.5 million that is permitted in 2025-26 due to financial constraints. Whether or not they spend the full allotment, schools must determine exactly how to allocate payments to student athletes and ensure their plans align with their budgets. Similarly, the changes in allowable roster sizes must be factored into financial planning. Schools that do not wish to fall behind competitively must consider these changes and determine whether any fundraising, adjustments in ticket prices, new revenue streams or other efforts are necessary to cover the added costs.
Consider Program Impacts
The settlement will impact all student athletes at power five schools and those at schools that opt in to the settlement, regardless of whether those athletes are receiving revenue share payments. Even if a school opts to share revenue with only certain athletes or certain teams, it will be subject to roster limits imposed by the settlement for all sports. This could affect participation numbers, and should be considered in assessing Title IX compliance.
Consider Student Athlete Impacts
Schools need to be aware of how the settlement may affect both their student athletes as individuals and the way the institution interacts with them. As publicity and transparency around NIL deals increase, supporting student athlete mental health must become an even greater priority. Schools must also decide their role in helping students in building their personal brands and if they will be involved in any third party NIL deals.
On the other hand, schools must also be aware of how their student athletes can affect their institutional brands. Schools will want to consider placing limitations on NIL deals related to certain activities or industries (e.g., gambling or alcohol, and other drugs), and consult with their leadership and Boards, as well as state regulators, to ensure that NIL deals are consistent with the collective values of the institution, remain compliant, and to ensure that the schools and athletes are protected from public relations issues. While most agreements with players receiving revenue sharing payments contain restrictions prohibiting the player from engaging in marketing related to products or brands that could bring disrepute upon universities, schools will need to carefully consider policies for athletes who are not subject to revenue sharing contracts.
Addressing Title IX Concerns
Roster limits are not the only way that the settlement may impact Title IX compliance. The compensation distributed to former players will be primarily paid to men’s basketball and football participants, and purports to release Title IX claims―although the enforceability of the release under Title IX has not been tested. Moving forward, market forces will likely dictate that schools compensate male athletes at much greater rates than female athletes, creating potential Title IX violations. In January, the Trump administration withdrew Biden-era guidance from the Department of Education that would require schools to share revenue equitably among men’s and women’s sports to comply with Title IX. While it seems unlikely that the federal government will pursue Title IX enforcement related to athlete compensation, schools should remember that Title IX may be enforced by private litigation. It is entirely foreseeable that female athletes will sue their institutions when they lose participation opportunities because of roster limits and are compensated at a lower rate than (or not at all) compared to their male counterparts.
Stay Informed
It is imperative for institutions to continue to monitor NCAA developments over the settlement period. It is still uncertain what role Title IX will play on these changes and future guidance has the potential for significant impacts. Additionally, many aspects are bound to change—some intentionally, such as the pool cap’s annual 4% increase, and others unexpectedly. Schools should remain alert and ready to respond to any additional guidance to ensure NCAA compliance.
Schools who are considering opting in should consider structural changes to their athletics program that will allow them to maximize revenue and avoid potential liability.
Federal Circuit Provides Clarity on Use of Applicant Admitted Prior Art (“AAPA”) in IPRs
Qualcomm Incorporated v. Apple Inc., No. 23-1208 (Fed. Cir. 2025)—On April 23, 2025, the Federal Circuit reversed the Patent Trial and Appeal Board’s finding that claims of Qualcomm’s U.S. Patent No. 8,063,674 (“the ’674 Patent”) are unpatentable as being obvious over the prior art.
Background
In 2018, Apple filed two IPR petitions each directed to different claims of the ’674 Patent. The IPR petitions included a table listing the grounds for the IPR challenge and the basis of each ground, with the basis for Ground 2 being “§103: Applicants [sic] Admitted Prior Art (AAPA) in view of Majcherczak.” The AAPA included a circuit diagram that was labeled as “PRIOR ART” in the ’674 Patent. In January 2020, the Board issued a consolidated final written decision finding the challenged claims of the ’674 Patent unpatentable under Ground 2.
Qualcomm appealed and argued that Ground 2 violated 35 U.S.C. § 311(b) because under § 311(b) only “prior art consisting of patents or printed publications” may form the basis for a petitioner’s request to cancel claims and that AAPA did not qualify as a patent or printed publication.
In February 2022, the Federal Circuit found that the Board “incorrectly interpreted § 311(b)’s ‘prior art consisting of patents or printed publications’ to encompass AAPA contained in the challenged patent.” However, the Federal Circuit clarified that “the use of AAPA can be permissible in an [IPR].” The Federal Circuit vacated the Board’s final written decision and remanded for the determination of “whether AAPA improperly formed the ‘basis’ of Apple’s challenge.”
In June 2022, the USPTO issued “Updated Guidance on the Treatment of Statements of the Applicant in the Challenged Patent in [IPRs] Under § 311(b)” that stated under § 311(b), if an IPR petition “relies on admissions in combination with reliance on one or more prior art patents or printed publications, those admissions do not form ‘the basis’ of the ground.” Relying on this Updated Guidance, the Board determined that Apple’s use of AAPA in Ground 2 did not violate § 311(b) because it relied on AAPA “in combination” with a prior art patent (i.e., Majcherczak). The Board rejected Qualcomm’s argument that Apple “conceded that AAPA forms the basis of the Ground 2 challenge” by expressly stating the “Basis” of Ground 2 was “[AAPA] in view of Majcherczak,” because per the Federal Circuit in Qualcomm’s appeal, AAPA can be relied on without violating § 311(b), so the Board determined that Apple’s express statements are “not determinative as to what the ground is based on.” Accordingly, the Board decided on remand that the challenged claims of the ’674 Patent are unpatentable as obvious under Ground 2.
Qualcomm again timely appealed the Board’s determination of unpatentability.
Issues
The primary issues on appeal were:
Whether under § 314(d), a petitioner’s compliance with § 311(b) is reviewable by the Federal Circuit due to institution decisions being nonappealable?
Whether the Board misinterpreted § 311(b)?
Whether the Board erred in determining that Ground 2 complied with § 311(b)?
Holdings and Reasoning
1. Under § 314(d), a petitioner’s compliance with § 311(b) is reviewable by the Federal Circuit.
Apple argued that Qualcomm’s argument regarding non-compliance with § 311(b) due to “the basis” of Ground 2 relying on AAPA was “not permissible” under § 314(d), because Qualcomm’s argument effectively was a challenge of the decision to institute the IPRs.
The Federal Circuit held that Qualcomm’s appeal is not barred from review under 35 U.S.C. § 314(d), which states: “The determination by the Director whether to institute an [IPR] under this section shall be final and nonappealable.”
The Federal Circuit rejected Apple’s argument because “Qualcomm’s challenge does not pertain to the Board’s determination about a run-of-the-mill statutory provision of a procedural nature regarding the threshold question whether to institute an IPR. Rather, as in [SAS Inst., Inc. v. Iancu, 584 U.S. 357 (2018)], Qualcomm’s appeal presents a question about the manner in which the agency’s review proceeds once instituted.”
2. The Board misinterpreted § 311(b).
The Federal Circuit held that “the Board’s interpretation of § 311(b) contravened the plain meaning of the statute.”
In Qualcomm’s previous appeal, the Federal Circuit found that “AAPA is not a prior art patent or printed publication.” Thus, the Federal Circuit reasoned that “because [under § 311(b)] the basis can only include prior art consisting of patents or printed publications . . . it follows that the plain meaning of § 311(b) does not permit the basis to include AAPA.” The Board interpreted § 311(b) to provide that AAPA does “not form ‘the basis’ of the ground” where “an IPR petition relies on admissions in combination with reliance on one or more prior art patents or printed publications.” The Federal Circuit rejected the Board’s interpretation because “[u]nder the plain meaning of § 311(b), the question is whether a petitioner has used AAPA as the basis, or part of the basis, of a ground—not whether the request relies on AAPA in combination with prior patents or printed publications.”
3. The Board erred in determining that Ground 2 complied with § 311(b).
The Federal Circuit agreed with Qualcomm that “the Board misapplied § 311(b) to conclude that Ground 2 complies with the statute.” The Federal Circuit found that “the Board erred when it applied its incorrect statutory interpretation to conclude that ‘it is the prior art patents—Majcherczak and, when used, Matthews—that form the basis of the challenge and AAPA is simply being used to provide missing limitations,’ and not as the basis of Ground 2 in violation of § 311(b).”
In addition, the Federal Circuit agreed with Qualcomm that Apple’s IPR petitions “conceded that AAPA forms the basis of the Ground 2 challenge” because “[e]ach petition opened with a table that prominently labeled the ‘Basis’ of Ground 2 as ‘AAPA in view of Majcherczak’ . . . .” The Federal Circuit held that “[r]eliance on AAPA in combination with prior art patents or printed publications is not dispositive of whether AAPA is included in the basis of a ground. But what is dispositive are express statements—as in Apple’s petitions—that AAPA is in the ‘Basis’ of a ground.”
The Federal Circuit noted that due to the “unequivocal use of ‘basis’ in Apple’s petitions, we need not consider whether, in substance, Ground 2 included AAPA in its basis.” The Federal Circuit further left open however the question of how much reliance on AAPA may be permitted in an IPR and that “[w]e expect future cases may require the PTO and this court to consider the substance of a petition to determine compliance with § 311(b).”
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Payroll Brass Tax: Understanding PTO Donation Programs—A Guide for Employers [Podcast]
Ogletree Deakins’ new podcast series, Payroll Brass Tax, offers insights into frequently asked questions about employment and payroll tax. In the inaugural episode, Mike Mahoney (shareholder, Morristown/New York) and Stephen Kenney (associate, Dallas) discuss paid time off (PTO) donation programs, which allow employees to support each other during challenging times, such as natural disasters or prolonged illnesses. Stephen and Mike explain the three types of PTO donation programs—general, medical emergency, and natural disaster—and highlight the tax implications and administrative considerations associated with each type. The speakers emphasize the importance of carefully structuring PTO donation programs to avoid potential tax issues, particularly those related to the assignment of income doctrine, which provides that income is taxed to the individual who earns it, even if the right to that income is transferred to someone else.
Mississippi Gaming Commission Meeting Report May 2025
The Mississippi Gaming Commission held its regular monthly meeting on Thursday, May 15, 2025, at 9:00 a.m. at the Jackson office. Executive Director Jay McDaniel and Chairman Franc Lee, Commissioner Kent Nicaud and Commissioner Jeremy Felder were all in attendance. The following matters were considered:
LICENSING
The Commission approved the issuance of a license to the following:
Sega Sammy Creation USA Inc. as a Manufacturer and Distributor
Coast Gaming Supply, Inc. as a Manufacturer and Distributor
KGM Gaming, LLC as a Manufacturer and Distributor
FINDINGS OF SUITABILITY
The Commission approved findings of suitability for the following persons and entities:
Naoki Kameda – Sega Sammy
Hajime Satomi – Sega Sammy
Haruki Satomi – Sega Sammy
Shuji Utsumi – Sega Sammy
Ayumu Hoshino – Sega Sammy
Hiroshi Ishikura – Sega Sammy
Koichi Fukazawa – Sega Sammy
David Benjamin Sambur – AP X Voyager VoteCo, LLC (Everi Payments, Everi Games, and IGT)
Daniel Cohen – AP X Voyager VoteCo, LLC (Everi Payments, Everi Games, and IGT)
Skrmetta MS, LLC – BTN, LLC d/b/a Boomtown Casino Biloxi
Motozumi Miwa – Glory LTD and Glory Global Solutions, Inc.
OTHER APPROVALS
The Commission approved the following:
Request for Approvals – Sega Sammy
Registration of Sega Sammy Creation Inc. as a Holding Company of Sega Sammy Creation USA Inc.
Registration of Sega Sammy Holdings Inc. as a Publicly Traded Company of Sega Sammy Creation USA Inc.
Waiver of the Stock Restriction Legend Requirement
Continuous Approval of Public Offerings and/or Private Placements
Pledges of Equity Interests or Securities
Imposition of Equity Restrictions including Negative Equity Pledges
Guarantee of Securities and Hypothecation of Assets
Request for Approvals – GAN
Proposed Acquisition of Control of GAN Limited
Approval of the Merger of Arc Bermuda Limited with and into GAN Limited
Registration of each of GAN Limited and Sega Sammy Creation Inc. as a Holding Company of GAN Nevada Inc.
Registration of Sega Sammy Holdings Inc. as a Publicly Traded Corporation of GAN Nevada Inc.
De-Registration of GAN Limited as a Publicly Traded Company of GAN Nevada Inc.
Request for Approvals – Everi Games Inc., Everi Payments Inc., and IGT
Registration of Voyager Parent, LLC as a Holding Company of Everi Games Inc., Everi Payments Inc., and IGT
Registration of Voyager Holdco II, LLC as a Holding Company of Everi Games Inc., Everi Payments Inc., and IGT
Registration of Voyager Holdco I Corporation as a Holding Company of Everi Games Inc., Everi Payments Inc., and IGT
Registration of Voyager TopCo, L.P. as a Holding Company of Everi Games Inc., Everi Payments Inc., and IGT
Registration of AP Voyager Holdings, L.P. as a Holding Company of Everi Games Inc., Everi Payments Inc., and IGT
Registration of AP X Voyager Aggregator, L.P. as a Holding Company of Everi Games Inc., Everi Payments Inc., and IGT
Finding of Suitability of AP Voyager Co-Invest, L.P. as a Greater than 5% Owner of Everi Games Inc., Everi Payments Inc., and IGT
Registration of AP X Voyager VoteCo, LLC as a Holding Company of Everi Games Inc., Everi Payments Inc., and IGT
Proposed Acquisition of Control of Everi Holdings Inc.
Approval of the Merger of Voyager Merger Sub, Inc. with and into Everi Holdings Inc.
De-Registration of Everi Holdings Inc. as a Publicly Traded Corporation of Everi Games Inc. and Everi Payments Inc.
Registration of Everi Holdings Inc. as a Holding Company of Everi Games Inc. and Everi Payments Inc.
Transfer of the Equity Interests or Securities of International Game Technology
Registration of Ignite Rotate LLC as a Holding Company of IGT
Transfer of the Equity Interests or Securities of Ignite Rotate LLC
De-Registration of International Game Technology PLC as a Publicly Traded Corporation of IGT
Pledges of Equity Interests or Securities
Imposition of Equity Restrictions including Negative Equity Pledges
Issuance of Options and Restricted Stock Units and Exercise Thereof of Voyager Holdco I Corporation
Review of Hearing Examiner’s Decision regarding player dispute hearing held and decision rendered on April 7, 2025, in Aaron J. Goetsch vs. BTN, LLC d/b/a Boomtown Casino Biloxi; MGC No. 24- 00149 (SD)
The Commission declined to review the decision of the hearing officer.
End of Other Approvals