Former Washington stars have questions about NCAA v. House damages

Why Ben Burr-Kirven is scheduled to voice his objection to the settlement during a Monday hearing.

Photo courtesy of UW Football.

Hey, remember Myles Gaskin and Ben Burr-Kirven?

Rhetorical question, I know, but that’s sort of the point. One is Washington’s all-time leading rusher. The other was the Pac-12’s Defensive Player of the Year in 2018. They came into school together and were integral pieces of the Chris Petersen era.

Had they put forth identical careers today, each might have six figures in their bank account by the time they graduated.

Certainly, they would have made more than $57,000.

A final approval hearing is scheduled Monday morning for the groundbreaking NCAA v. House settlement. Assuming U.S. District Court Judge Claudia Wilken does eventually grant approval — her final decision isn’t expected Monday, for what it’s worth — college athletic departments will for the first time be able to share up to $20.5 million directly with athletes. Current UW football players already have signed NIL contracts with the school in anticipation of the settlement taking effect July 1.

That much, you’ve heard about. But the lesser-discussed aspect of the settlement is the roughly $2.8 billion in back damages owed by the NCAA and power conferences to thousands of former athletes like Burr-Kirven and Gaskin, who were never allowed to profit off their name, image and likeness.

It’s a good thing, or at least better than nothing.

From Burr-Kirven’s perspective, it’s not good enough.

In January, the former linebacker joined dozens of others in filing a formal objection to the settlement, and he is on the list of speakers scheduled to address the court during Monday’s hearing in Oakland.

It wasn’t so long ago that you need reminding, but in case you’ve forgotten: Burr-Kirven led FBS in total tackles as a senior in 2018, was a finalist for the Lott Impact Trophy and helped the Huskies to their second conference championship in three seasons.

The year prior, he was second-team all-conference. Think Montlake Futures might have put together a decent compensation package for him ahead of that 2018 season?

How about for Gaskin, who became the first player in Pac-12 history to rush for 1,000 or more yards in four consecutive seasons?

Of course, it isn’t necessarily feasible for every player covered by the damages class — those who played from 2016 on, meaning the final three seasons of Burr-Kirven’s and Gaskin’s careers — to receive the equivalent of what he would have made in the NIL era. But when Burr-Kirven heard that the top payouts for past players could equal $1.8 million, he figured, as a former All-American, that he might get about half that.

Instead, as he wrote to the court, he will receive less than several of his own teammates whose on-field performance paled in comparison. Gaskin was given the same number: payments totaling $57,000 throughout the next decade.

“I cannot decipher why performance would not be considered,” Burr-Kirven wrote to the court, “with the result that I am paid so much less than players on my own team during the same time period.”

The former linebacker listed several examples gleaned through his own research: an offensive teammate due $98,000 who played during the same seasons as Burr-Kirven; a defensive teammate due $105,000; and an offensive player at Washington State who will receive $103,000.

Without knowing the identities of these players, it’s impossible to know what circumstances might have dictated a greater payout than Burr-Kirven’s. For example, only athletes who participated from 2019 to 2024 are eligible for “athletic services” compensation, which purportedly does factor in performance statistics. But that’s part of why Burr-Kirven described the payout structure as “opaque, unclear and illogical,” and why he claims the settlement creates a “second class” even among those covered by it.

Back-damages payouts were calculated via a formula developed by Dr. Daniel Rascher, a professor of economics and finance at the University of San Francisco who served as an expert witness. The back damages include three components: broadcast NIL, video game NIL and, at the heart of Burr-Kirven’s contention, “Lost Opportunities” NIL.

Calculations for the latter category relied on a “before and after” methodology, which applies only to those athletes whose careers began before the NCAA relaxed its NIL rules in 2021, and continued for some time after that.

Which might explain why, as Burr-Kirven wrote in an objection to the court, a special-teams player who graduated after the NIL rule change is set to receive payments totaling $259,000, more than five times Burr-Kirven’s payout.

“The logic is circular,” Burr-Kirven wrote. “You can only get compensated for lost NIL if you got NIL.”

The way Burr-Kirven sees it, the distribution of back damages is one more slap in the face to a class of athletes who were most harmed by the decades-long suppression of NIL-related payments.

In an omnibus response to the settlement’s objectors, this is how attorneys for the plaintiffs addressed complaints like Burr-Kirven’s: “...such complaints that a neutral and objective expert damages methodology does not provide every class member with the amount of damages that he or she desires is not a proper ground for objection to a class action settlement.”

Another refrain in defense of the settlement: any athlete unsatisfied with their payment can decline to opt-in, and instead pursue their own litigation. And plaintiff’s attorneys also noted that only 343 class members have opted out, a figure equivalent to .09 percent of the damages class.

Burr-Kirven ultimately decided to opt in, with the hope that Judge Wilken might direct the plaintiff’s attorneys to re-examine the payout figures. That isn’t considered likely, and the attorneys are correct in their assertion that the settlement doesn’t need to be perfect to warrant approval. It’s going to put a lot of money into the pockets of a lot of former athletes who also were financially harmed.

Again, it’s better than nothing.

But it still stinks for players who couldn’t accept so much as a meal from a booster during their own playing days, and whose NIL value would have been worth hundreds of thousands of dollars throughout their careers.

“When we were in college, we lived off $1,600 a month, and then in the summer, we didn’t get paid,” Gaskin said. “So $1,600 ain’t going far when your rent is $800.”

Back then, Gaskin said, if he knew of another player with $10,000 in his bank account, “it was like, damn, bro, you’ve got a lot of money.”

The schools certainly did.

“You see these stands getting filled in. You see all these people coming to these games, all the support you get — which I obviously loved,” Gaskin said. “And everybody says a scholarship is what you get back. But I would say that we made more money than what a scholarship cost, you know what I’m saying?

“I’m happy for the younger generation. I felt like we should have got paid, so it’s good for somebody to be able to get paid and live that lifestyle of getting paid for what you do.”

Gaskin did not file an objection, but said he opted out of the settlement, hoping for some kind of reconsideration prior to final approval.

Not everyone feels the same way. Gaskin said he’s spoken to several former teammates who are pleased with their payouts, but knows of a handful who, like him, feel they’re receiving only a pittance, considering their contributions.

“For some guys to get more, and you can’t really give a rhyme or a reason,” Gaskin said, “I think that’s where it has guys a little bit more torn.”

— Christian Caple, On Montlake