What happens to Texas A&M athletes who objected, opted out of House settlement?

(KBTX) - With Judge Claudia Wilken’s signature on a 76-page settlement approval for the House v. NCAA antitrust case, hundreds of former Texas A&M athletes are due thousands of dollars in backpay for missed opportunities in name, image, and likeness (NIL) compensation.

For others, the amount of damage they will receive is lower or still undetermined.

Seven former A&M athletes opted out of the House settlement and joined onto a different lawsuit- Fontenot v. NCAA- which had been put on hold pending the outcome of the House settlement. Similarly, former Texas A&M walk-on football player Kwame Etwi objected to a portion of the settlement that ultimately did not receive a ruling in his favor from Judge Wilken before her approval and fellow football walk-on Ruey Garvis objected to the implementation of roster limits.

In early January, Etwi filed a formal objection letter with the U.S. District Court for the Northern District of California, asking the court to “reconsider the criteria for the damage class.” Per the language of the settlement, only football athletes who were on scholarship from 2016 to 2021 will receive full damages for lost NIL compensation. Etwi wanted the court to reconsider, using metrics that took game participation into play, not just scholarship status.

The Aggie running back was never put on scholarship during his years at A&M but saw significantly more playing time than a traditional walk-on and was listed as the second-string running back his senior year. In four seasons, he carried the ball 59 times for 391 yards and two touchdowns. He also served as a kick returner during his senior season.

Part of the damage that will be awarded to these football players who were on scholarship is compensation for the use of their name, image, and likeness during the broadcast of games.

“What better case is there for broadcast revenue than actually playing on these networks that you have the deals with? I can’t really think of one,” Etwi pondered in January.

In her brief, Judge Wilken said 73 objections were considered that were filed by settlement class members. As to Etwi’s complaint, Judge Wilken found the settlement’s definition of the broadcast NIL class to be fair and reasonable, leaning on sports economist Daniel Rascher’s analysis which was used in drafting the settlement. Because universities weren’t in competition to provide a scholarship to these athletes, Rascher said they wouldn’t have competed for broadcast NIL payments at that time, had they been legal.

Judge Wilken noted how athletes who did not agree with the plan for broadcast NIL damages could have opted out and could pursue their own claims in a different lawsuit.

By all indications, Etwi was still prepared to opt in to the settlement to receive some compensation for damages that could have been earned had there been a football video game. He did not respond to a request for follow-up questions for this story.

“That’s something where Judge Wilken really just deferred to the parties and just said this seems like a reasonable compromise,” Boise State Assistant Professor in Legal Studies Sam Ehrlich told KBTX after the settlement’s approval. “The standard for her to approve the settlement as a whole is just that it needs to be fair and reasonable and kind of make sense for the entire class, and it’s something where she said ‘yes, it does.’”

Ehrlich said this ruling was unfortunate and he believes there are some “famous walk-ons” who might actually have had a case.

Garvis took issue to the implementation of roster limits in the House settlement, which ultimately replaced scholarship limits for individual sports. This was a key issue championed by Judge Wilken, which delayed the ultimate approval of the settlement.

Both parties agreed to guarantee roster spots for these designated athletes who would have been otherwise cut and work down to a roster limit as these athletes run out of eligibility.

The deadline for athletic departments to designate these athletes is July 6.

Now, athletes who could have been seen as expendable could be seen as a commodity for their programs, Judge Wilken wrote.

“The Court finds that the [Settlement Agreement] modifications to exempt Designated Student-Athletes from roster limits will make those athletes more valuable to teams than they otherwise would be, because they will be able to participate on a team without counting against the roster limit,” she said in her approval filing.

All seven A&M athletes that were added to the Fontenot lawsuit opted out of the House settlement, precluding them from any payments they would have been entitled under the House settlement.

Former football offensive linemen Carson Green, Colton Prater, Jared Hocker, and Keaton Sutherland, as well as A&M pitcher Asa Lacy, basketball forward Kevin Marfo, and football defensive back Elijah Blades make up the seven opt outs.

While Fontenot initially made claims against the NCAA’s restrictions on athlete compensation, the case now will mostly just seek a different compensation formula for back pay to the athletes that opted out of House and joined this lawsuit, Ehrlich said.

“They could get more compensation than they would have gotten in the House settlement,” he added. “I imagine that’s what they’re going for and, really, that’s what this Fontenot case becomes.”