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Kessler Says DOJ Critiques of House Settlement Are Off Base

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Kessler Says DOJ Critiques of House Settlement Are Off Base

The Justice Department’s statement of interest criticizing the NCAA’s preliminarily approved settlement to resolve the HouseCarter and Hubbard antitrust litigations is off the mark, attorney Jeffrey Kessler told Sportico in a phone interview on Saturday.

The DOJ’s court filing was made in a California federal district court late Friday. Among other critiques, the DOJ objects to colleges paying athletes 22% of a defined formula for averaged shared revenue. The DOJ finds this arrangement inadequate because the “cap” has not been collectively bargained with a union (there is no union for college athletes since they are not employees and unions consist only of employees). 

The cap, the DOJ highlights, means D-1 schools won’t be able to compete for college athletes by offering them “additional value beyond that limit for use of their [NIL].” The DOJ finds it problematic that an NCAA member school “is not permitted to spend what it wants … to compete for the services of college athletes.” While the new amount (around $21 million a year for a school’s athletes) is dramatically greater than the old amount ($0), it is “still fixed by agreement” among competing businesses. Price fixing by competitors is generally disfavored under antitrust law.

The DOJ is also worried that the NCAA and power conferences can use the settlement, which is set to last 10 years, as a defense in future antitrust cases. As the DOJ sees it, the NCAA might “attempt to use a private, negotiated settlement as a shield in future litigation.” To corroborate that concern, the DOJ references an email from NCAA and power conferences attorney Rakesh Kilaru sent to DOJ attorneys in which Kilaru noted his clients “retain all rights” to rely on the settlement. 

Kessler, a partner at Winston & Strawn and a lead attorney in several historic sports litigations, stressed the settlement, if granted final approval by U.S. District Judge Claudia Wilken following a hearing on April 7, will lead to college players being paid “billions of dollars.” He also underscored the settlement will change longstanding NCAA rules that have denied players any compensation. 

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A settlement is also just that—a settlement—meaning it reflects the give-and-take of a deal. Both sides, including the NCAA, need to find the prospect of settling better than continuing to litigate. The players and the NCAA (and power conferences) could have kept litigating and rolled the dice. They would have also had to accept spending many years in court since federal appeals in antitrust cases can last a long time. They instead opted to cut a deal. Wilken is not charged with determining if the settlement is ideal or optimal for the players. She must assess if it satisfies a lower bar: The settlement must be fair, reasonable and adequate for class members and adequately resolve the alleged antitrust problems.

As to the possibility of the settlement being used as a defense, Kessler emphasized “there is no release of antitrust claims,” either by the Justice Department—which is not a party to the litigation—or future players. 

If elite athletes who are currently 12 years old wish to challenge NCAA rules on antitrust grounds in five years, the athletes can do so. The settlement doesn’t release future claims. The two sides expect the 12-year-olds won’t bring a lawsuit and will instead accept the compensation figures that have been set in the House settlement, but if the 12-year-olds want to sue, they can. 

The NCAA can use the settlement as a legal defense, but a defense is only as persuasive as found by a court. A defense is not an antitrust immunity or exemption. It’s also not as if the House settlement has dissuaded the filing of antitrust lawsuits. Since Wilken granted preliminary approval last October, Vanderbilt QB Diego Pavia has challenged NCAA eligibility restrictions on JUCO transfers on antitrust grounds and Southern Mississippi basketball player John Wade III has challenged the NCAA’s five-year eligibility period on antitrust grounds. 

The timing of the DOJ’s filing is important for at least a few reasons.

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First, the filing was made with less than three days to go before President-elect Donald Trump is sworn in as the 47th president of the United States. Trump, his nominee for U.S. attorney general, Pam Bondi, and incoming attorneys for the DOJ’s antitrust division might not agree with the DOJ’s position as expressed in Friday’s statement and could withdraw or amend the statement.

Trump’s DOJ, including its antitrust division, will also take months to fill out. The U.S. Senate must confirm Trump’s nominee for the assistant AG of the antitrust division (Gail Slater) and positions in that department will gradually be filled. Time is of the essence: Wilken is set to decide on final approval after a hearing 11 weeks from now. Trump’s DOJ might not be ready to express a viewpoint by then. This could create an uncertain landscape for Wilken to know the DOJ’s position, which could make the DOJ’s filing on Friday seem less authoritative. 

Second, the timing of the DOJ’s statement could deflate its legal arguments. The DOJ could have raised these same points last year, including before Wilken granted preliminary approval in October, but waited until the final hours of the Biden administration. Those points were also already raised by seven former and current D-I athletes in their court filing last October, which might have been a better time for the DOJ to weigh in. Rushing to file the statement before Trump takes office could be interpreted as the DOJ, under the leadership of President Joe Biden and Attorney General Merrick Garland, believing Trump and Bondi hold different views. 

Lastly, it’s telling that while the DOJ opines the House settlement doesn’t do enough for college athletes because of underlying antitrust concerns, the DOJ hasn’t sued the NCAA over those concerns. The DOJ, while under the leadership of Democratic and Republican presidents, could have challenged these rules at various points over the last 70 years. In fairness to the current DOJ, it did join a lawsuit (Ohio v. NCAA) last year over NCAA transfer rules. And in 1998, the DOJ sued the NCAA under the Americans with Disabilities Act over treatment of college athletes with learning disabilities. But the DOJ could have, and didn’t, challenge numerous other NCAA rules in recent decades as the same college athletes at “big time” programs generated massive revenues for their schools and weren’t paid. 

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‘Sentimental Value’ Writing Duo Joachim Trier and Eskil Vogt Still ‘Keep the Marriage Happy’: ‘He’s My Longest Relationship’

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‘Sentimental Value’ Writing Duo Joachim Trier and Eskil Vogt Still ‘Keep the Marriage Happy’: ‘He’s My Longest Relationship’

It wasn’t love at first sight for longtime collaborators Joachim Trier and Eskil Vogt, who met when they were both in their late teens.

“We were both camera assistants, taking care of the cables on a quiz show in Norway. Joachim was still skating and wearing the biggest pants I’d ever seen. They were as wide as they were tall. I was the black jeans and Dr. Martens type, so I was skeptical,” laughs Vogt, who co-wrote “Sentimental Value” with Trier.

Then they started talking about films. 

“Suddenly, there was someone who’s seen more Fellini films than I had, and I had Hal Hartley films on VHS he wanted to borrow. This was the first time I met someone who shared my dream of making films, and that made the dream more tangible and real,” says Vogt.

Six features later, they are much more similar now, says Trier. Their way of working hasn’t really changed — they still start with ideas and develop the plot later on. 

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“We know it would be easier the other way around, but we still think of the plot quite late. Instead, we put notes up on the board and say: ‘Oh, I love this scene.’ And then we try to keep most of our darlings,” explains Vogt. 

Trier agrees: “We don’t construct the story until very late. Instead of having scenes I don’t want to shoot and we don’t want to write, we try to make sure none of them just ‘tells the story.’ They all have to be about the characters or [present us] with an exciting visual situation.”

“We still have a phase when we entertain a lot of ideas, but we come to the core of it quicker now. I think we’re more honest with ourselves — and about what we want. We also have this silly rule that we shouldn’t think too much about production limitations and money when we write. When I become the director again, it bites me in the ass.”

How do they keep it fresh? 

“I think we don’t,” laughs Vogt. 

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“There’s a lot of stuff going on when you make and release films, and we both like to go back to that safe space and rediscover that calm where it’s just our two voices. We are fortunate enough that our films generate more and more noise that we have to shut out, so when we work, we make it personal and small again.”

Following the success of 2021’s “The Worst Person in the World,” which earned them an Academy Award nomination for original screenplay — it also scored an Oscar nomination for international feature — expectations were high. Then again, they always are. 

“Every film feels like that. The first one, ‘Reprise,’ was quite successful, so ‘Oslo, August 31st’ was made out of panic: ‘Let’s do what we want now, before we don’t sell out’,” says Trier with a laugh. “’Worst Person’ was this fun film that generated a lot of attention and we knew we were going to put [“Sentimental Value”’”] into a climate of expectation. We used that panic and that energy to go deep into something we cared about.” 

In the film, which scored Grand Prix at Cannes, two sisters reunite with their absentee father, a movie director who wants to make a film about their family. It stars Stellan Skarsgård, “Worst Person” breakout star Renate Reinsve and Inga Ibsdotter Lilleaas, who seems to be on the same trajectory as Reinsve in terms of global recognition for her performance.

“A few months into that process, we thought: ‘We’re going to lose some of the people who loved ‘Worst Person’ for being so young and exuberant,’” says Vogt. Fast forward to November and the film is being embraced by an even younger audience and “spreading on TikTok,” says Trier with a hint of irony.  

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Their friendship allows them to get “very intimate and very personal super quickly” when they write. 

“When I write alone, I procrastinate. When I’m procrastinating with Joachim, even if I haven’t done anything, at least I got to spend a day with my friend,” says Vogt. Trier adds: “It took me a long time to create a real family outside of art. I have one now, but Eskil is my longest relationship outside of my parents. We don’t need to be silly romantic about it, but we have to be honest: it’s a real gift.”

Trier continues: “If you look at our filmography, it becomes apparent we’ve been tracing the development of our life stages. I don’t think we could have made ‘Sentimental Value’ earlier in our collaboration.”

They say their relationship is “like every old marriage,” but having an open relationship isn’t an option just yet.

“I think we get enough excitement with other collaborators to keep the marriage happy,” says Trier.

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“Eskil has always told me: ‘If you want to write with someone else, it’s OK’ We have those tough conversations, but it just hasn’t happened yet. I still call him during the shoot, so he’s used to me working with others and doing my own thing, and he allows that. I’m also happy to see Eskil making his own films without me at all.” 

Vogt, who directed “The Innocents,” adds: “Maybe it would be interesting for you to make a film without me involved…” 

“…And see how shitty I really am,” deadpans Trier. “I come from a family of artists — I love the team thing. Eskil can write alone — I would hate that. We get annoyed with each other, but that’s life: there’s still love at the end of the day. So, you know, touch wood. I hope it continues.”

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Russia warns Western forces in Ukraine would be considered ‘legitimate combat targets’

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Russia warns Western forces in Ukraine would be considered ‘legitimate combat targets’

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Russia on Thursday warned that any Western military forces deployed to Ukraine under a post-war security arrangement would be considered “legitimate combat targets,” sharply criticizing a newly signed Paris declaration outlining security guarantees for Kyiv.

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In a statement posted on the Russian Foreign Ministry’s Telegram channel, spokeswoman Maria Zakharova said the declaration, backed by Ukraine, the United States and several European countries, was not aimed at peace but at further militarizing Ukraine and escalating the conflict.

She specifically objected to provisions calling for a multinational force and continued military support for Ukraine’s armed forces, warning that any foreign troops, military infrastructure or facilities on Ukrainian territory would be viewed by Moscow as direct foreign intervention.

UKRAINE, US NEAR 20-POINT PEACE DEAL AS PUTIN SPURNS ZELENSKYY CHRISTMAS CEASEFIRE OFFER

Russian Foreign Ministry spokesperson Maria Zakharova attends the annual press conference held by Foreign Minister Sergei Lavrov on Jan. 14, 2025, in Moscow. (Evgenia Novozhenina/Reuters)

“All such units and facilities will be considered as legitimate combat targets of the Armed Forces of the Russian Federation,” Zakharova said.

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“These warnings have been voiced more than once at the highest level and remain relevant.”

British Prime Minister Keir Starmer said on Monday the U.K. and France signed a declaration of intent to deploy forces to Ukraine in the event of a peace deal, including establishing military hubs and facilities to store weapons and equipment after a ceasefire.

A soldier fires a third-generation Javelin man-portable anti-tank missile system during a professional training session on Jan. 7, 2026, in Ukraine. (Ukrinform/NurPhoto via Getty Images)

“It paves the way for the legal framework under which British, French and partner forces could operate on Ukrainian soil – securing Ukraine’s skies and seas – and regenerating Ukraine’s armed forces for the future,” Starmer told reporters at a press conference after the Coalition of the Willing meeting in Paris.

RUSSIA ALLEGES ATTACK ON PUTIN RESIDENCE AS UKRAINE DENIES CLAIM AHEAD OF TRUMP TALKS

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“We also have agreed [on] significant further steps. First, that we will participate in U.S.-led monitoring and verification of any ceasefire. Second, we will support the long-term provision of armaments for Ukraine’s defence. And third, we will work towards binding commitments to support Ukraine in the case of a future armed attack by Russia,” he added.

Germany’s Chancellor Friedrich Merz, Ukraine’s President Volodymyr Zelenskiy, France’s President Emmanuel Macron, Britain’s Prime Minister Keir Starmer, U.S. Special Envoy Steve Witkoff and U.S. businessman Jared Kushner speak at a press conference after signing a declaration at the Coalition of the Willing summit on Jan. 6, 2026, in Paris. (Ludovic Marin/Pool via Reuters)

U.S. special envoy Steve Witkoff said on X that negotiators made significant progress on a bilateral security guarantee framework and a prosperity plan for Ukraine, calling durable security guarantees essential to a lasting peace.

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Ukrainian President Volodymyr Zelenskyy on Thursday said the document on security guarantees for Ukraine is essentially “ready for finalization at the highest level with the President of the United States.”

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“Complex issues from the basic framework for ending the war were also addressed, and the Ukrainian side presented possible options for finalizing this document,” he added. “We understand that the American side will engage with Russia, and we expect feedback on whether the aggressor is genuinely willing to end the war.”

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Belgium open to housing foreign prisoners in other countries, minister says

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Belgium’s Migration Minister Anneleen Van Bossuyt is looking at “every possible solution” to increase the number of irregular migrants returned from Belgium, including renting or building prison space abroad to house foreign prisoners.

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