Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.
Student-Athlete NIL and Revenue-Sharing Compensation Subject to Multiple Regulations as Part of the NCAA Antitrust Settlement
Student-athlete compensation under the NCAA antitrust settlement falls into two main categories. The first is revenue-sharing, which allows each Division I institution to share up to 22% of the average revenue generated from athletics with its student-athletes. The total to be shared is capped at $20.5 million per institution the first year, with escalators raising the cap in future years. Most Division I institutions are allocating 75% to football, 15% to men’s basketball, 5% to women’s basketball and 5% to the institution’s remaining sports.
The second category of compensation is individual payments to student-athletes for licensing their name, image and likeness (NIL). NIL fees may be paid to the individual student-athlete by the college, a collective or an outside third-party business. All NIL payments of more than $600 must be submitted for approval to NIL Go, a clearinghouse development by Deloitte, as part of the overall antitrust settlement. A new entity called the College Sports Commission (CSC) was formed to review all deals submitted to NIL Go. The CSC reviews all deals to determine whether the payments are for a “valid business purpose related to the promotion or endorsement of goods or services provided to the general public for profit” and whether the amount paid matches the “market.” Commentators point out that developments in this area, including the nature of the CSC decision-making process, will likely be subject to further comment and possible controversy.
Federal Court Reverses Trump Administration’s Denial of Funds to Seattle Over City’s Rejection of DEI and Gender Executive Orders
A federal district court judge granted the city of Seattle’s request for an injunction that would prohibit federal agencies from refusing to distribute federal funds to the city over its refusal to adhere to the Trump administration’s policies on DEI programs and transgender rights (City of Seattle v. Trump (W.D. Wash. No. 2: 25-cv-01435, 10/31/25)). The decision of the trial-level federal district judge will ultimately be subject to appeal.
The judge issued a preliminary injunction against the Trump administration, holding that the administration would likely lose the case brought by the city of Seattle and concluding that the Trump administration’s actions violated the separation of powers, exceeded authority to cancel appropriations made by Congress, and violated the Administrative Procedures Act. The city argued successfully that the executive orders were unconstitutionally vague and violated the spending orders of Congress. The city estimated that without the injunction, it would lose approximately $370 million in federal payments for transportation, housing, law enforcement and public safety.
NCAA Reaches $303 Million Settlement With Division I Volunteer Coaches
The NCAA reached a settlement with a class of volunteer Division I coaches who had previously been unpaid pursuant to NCAA rules. The settlement covers a class of volunteer Division I coaches, excluding baseball coaches who sued separately and already received a class settlement of $49.3 million from the NCAA. This settlement covers 7,700 volunteer non-baseball coaches who worked at Division I institutions between 2019 and 2023 (Ray v. NCAA (E.D. Cal. 1:23-cv-00425, Prelim app. 11/10/25)).
The payments range individually from a minimum of $5,000 to some who will receive a six-figure settlement.
EEOC’s Dismissal of Claims Based on Disparate Impact Approved by Federal Court
A federal judge in Washington, D.C., approved the EEOC’s decision to drop an employee’s disparate-impact claims, following its recent policy shift to stop such prosecutions under a Trump administration executive order (Cross v. EEOC (D.D.C. 1:25-cv-03702, 11/25/25)). The plaintiff had filed a charge with the EEOC alleging that Amazon’s bathroom-break policy had a disparate impact on drivers based on sex.
The plaintiff sued the EEOC and was represented by the nonprofit organizations Public Citizen Litigation Group, Public Justice, Towards Justice and FarmStand. In dismissing the case against the EEOC, the judge noted that the plaintiff could still pursue her own individual litigation based on Title VII and the disparate-impact theory approved by the Supreme Court, but that the individual did not have standing to sue the EEOC for not enforcing that theory.
NCAA Prevails in Its Appeal Regarding Junior College Eligibility Rules – Split in Circuits May Still Remain
The 3rd U.S. Circuit Court of Appeals reversed a federal district court injunction that stopped the NCAA from enforcing its junior college eligibility rules, which include one year of junior college play in the five years of Division I eligibility. The appeals court approved the NCAA’s rule holding that the antitrust market analysis has changed since the initial Supreme Court decision in NCAA v. Alston and therefore, the NCAA’s junior college rule can stand (Elad v. NCAA (3rd Cir. 25-01870, 11/25/25)).
The 6th U.S. Circuit Court of Appeals came to a different decision on a similar case involving the NCAA’s appeal of an injunction allowing a former junior college student-athlete to continue to play. In that case, the court made the ruling on non-substantive mootness grounds, as the NCAA had granted the player a limited waiver of the rule. This remains an area where the final fate of the NCAA’s junior college eligibility rules is unclear and subject to further litigation.
NLRB Likely To Reach Quorum Status Soon With Nominees on the Cusp of Senate Confirmation
Senate Republicans added Scott Mayer, chief labor counsel at Boeing, to join James Murphy, a retired National Labor Relations Board attorney nominated by President Trump, on the list of approximately 80 federal nominees awaiting group Senate confirmation. Also on the list likely to be confirmed is Crystal Carey, a Morgan Lewis attorney who was nominated to be the NLRB general counsel. If the group confirmation goes forward, the NLRB will regain quorum status to resume making decisions.
Because of the unprecedented and fast-changing pronouncements of the new presidential administration and the intervening court challenges, the developments contained in this blog post are subject to change. Before acting on the legal issues discussed here, please consult your college or university counsel and, as always, act with caution.