NCAA College-Athletes Move to Secure Settlement

On January 31, 2018, a class of college-athletes, suing the NCAA over the alleged anti-competition cap benefits, asked Judge Claudia J. Wilken to issue an appeal bond. As we have previously covered, the class secured a court approved settlement of over $209 million, the second largest settlement in NCAA history. However, Darrin Duncan was the only member of the class of 53,748 that objected to the $209 million settlement. Mr. Duncan has since appealed the court approved settlement. Now, the rest of the class has asked Judge Wilken to grant an appeal bond forcing Duncan to pay a bond or drop his appeal. The class argues that Duncan has filed a frivolous appeal which has denied relief to the thousands of class members awaiting their share of the settlement.

Duncan’s appeal process could take years, and while it is ongoing, the class of college-athletes would not receive their share of the $209 million settlement. An appeal bond is often used when the party bringing the appeal is purposefully dispersing assets in an effort to avoid payment. An appeal bond would also protect the class against the risk of nonpayment. If Judge Wilken grants the request, the court would require Duncan to post a bond while his appeals process proceeds. According to the bond, Duncan “has filed a notice of appeal which, although substantively baseless, will operate as a de facto bar to delay implementation of this extremely beneficial settlement until the appeal is resolved.”

The class argued that the bond is necessary because Duncan will not be able to demonstrate an inability to post a bond and there is a substantial risk of non-payment, given that Duncan has a history of filing similar frivolous appeals. In November 2017, Duncan was again the only member of the class that objected to the $41 million attorneys’ fee award that was a part of the $209 million settlement. Further, the class argues that Duncan is unlikely to prevail on appeal because the class already addressed his objections, and the court overruled those objections by granting final approval of the settlement.

Based on previous decisions, the class asked Judge Wilken to require Duncan to post a bond in the amount of $78,893.80. If the appeal bond is granted, and Duncan does not want to secure the bond, then his appeal will be denied and the class of college-athletes will be paid their share of the $209 settlement. However, if Judge Wilken denies the request, Duncan’s appeal will proceed and the class of college-athletes will not be paid.

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