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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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Poland and Ukraine’s ‘honours war’ intensifies

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Poland and Ukraine’s ‘honours war’ intensifies

Current and former Ukrainian officials are to return honours bestowed upon them by Poland after Ukrainian President Volodymyr Zelenskyy was stripped of the country’s highest state honour.

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Tensions have been rising between Kyiv and Warsaw since Zelenskyy named a military unit after the controversial World War Two Ukrainian Insurgent Army (UPA).

In response to the move, Poland’s far-right president, Karol Nawrocki, announced that he was stripping Zelenskyy of the Order of the White Eagle.

On Saturday, Zelenskyy said he had sent the Order back to Poland, posting a photo to social media appearing to show it being packaged up ready to be shipped.

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“We believed that the Order of the White Eagle, awarded in 2023, was meant for the Ukrainian People and our army,” he wrote, adding that Ukraine was “grateful to the Polish People for their support and cooperation”.

Cracks in the alliance?

Nawrocki has insisted that the decision was “not directed against the Ukrainian people” and that Poland would continue to support Ukraine.

Even so, many in Ukraine saw Nawrocki’s move as an attack.

Ukraine’s foreign minister, Andrii Sybiha, was the first to react, announcing that he would return the Commander’s Cross with Star of the Order of Merit of the Republic of Poland, which he received in 2022.

The head of the Office of the Ukrainian President, Kyrylo Budanov, and Ukraine’s ambassador to Poland, Vasyl Bodnar, followed suit by relinquishing their Officer’s Crosses of the Order of Merit of the Republic of Poland.

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The second, third and fifth presidents of independent Ukraine, Leonid Kuchma (1994–2004), Viktor Yushchenko (2005–2010) and Petro Poroshenko (2014–2019), also all announced that they were giving up their Order of the White Eagle honours.

Poroshenko made it clear that he had taken the decision in reaction to the Polish president’s move, but that it was in no way directed against the Polish people.

Yushchenko also stressed that he was acting in solidarity with Zelenskyy and the Ukrainian army, while calling Nawrocki’s decision “irresponsible”.

How did the crisis begin?

On 27 May, Volodymyr Zelenskyy signed a decree naming the Independent Special Operations Centre “North” of Ukraine’s Special Operations Forces as the “Heroes of the UPA”.

He said he had taken the decision “in order to restore the historical traditions of the national army and in view of the exemplary execution of the missions assigned in the defence of the territorial integrity and independence of Ukraine”.

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The Ukrainian Insurgent Army, or UPA, was a Ukrainian guerrilla force formed in October 1942 in Volhynia, in north-western Ukraine, as the military wing of the Organisation of Ukrainian Nationalists (OUN-B), an ultranationalist movement led by Stepan Bandera.

While fighting both the German army and Soviet forces, the organisation carried out massacres of the Polish population in Volhynia.

The decision has gone down particularly badly in Poland, and Nawrocki said he had learned of the move “with great sadness”.

“This is not how you build relations between nations,” he said on Friday, adding that glorifying the UPA gave Russian propaganda “a lot of oxygen for disinformation”.

The Polish president doubled down on Saturday, justifying his decision to withdraw the Order of the White Eagle from Zelenskyy by saying that his actions had overstepped the mark.

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Some have argued that only Russia stands to gain from the breakdown in relations.

Poland has been one of Ukraine’s main allies since the start of Russia’s full-scale invasion in February 2022, taking in hundreds of thousands of refugees and serving as a logistical hub for Western aid bound for Kyiv.

Polish Foreign Minister Radosław Sikorski said he was convinced that, given the historical context, only Russia could profit from a Polish-Ukrainian dispute.

Sikorski shared a comment by journalist and columnist Witold Jurasz of the newspaper Onet, who argued that by stripping Volodymyr Zelenskyy of the Order of the White Eagle, Nawrocki had indeed won a moral victory but had also suffered a defeat – and, with it, so had Poland as a whole.

Polish Prime Minister Donald Tusk, whose government is at odds with Nawrocki, criticised Zelenskyy’s decision, while stressing that the Ukrainian leader had assured him that he had not intended to offend Poles. He called on the two nations not to lose their solidarity and not to let “history ruin our future”.

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For his part, Ukrainian Foreign Minister Andrii Sybiha, who had earlier described the Polish president’s decision as “a strategic mistake… from which only Russia will benefit”, expressed his gratitude to Poles who do not support escalating tensions with Ukraine.

“I wish to thank every Pole who has clearly expressed their stance against escalating tensions with Ukraine. We are staunch supporters of the same approach,” he wrote on X.

“We are wise nations, always able to find a way out of a difficult situation. We are bound by a difficult history, a shared future, and the threat from our age-old enemy – Moscow,” he added.

Russian officials – who have repeatedly invoked the Second World War as a means to justify Moscow’s invasion by claiming it is a fight against “neo-Nazis” in Ukraine – have welcomed Nawrocki’s decision.

“The Polish president has finally stripped (Zelenskyy) of the Order of the White Eagle,” said former Russian president Dmitry Medvedev, now deputy chairman of Russia’s Security Council.

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Iran closes Strait of Hormuz over ceasefire violations

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Iran closes Strait of Hormuz over ceasefire violations
Iran’s top joint military command, ​Khatam al-Anbiya Central ‌Headquarters, said on Saturday that the Strait ​of Hormuz would ​be closed to vessel ⁠traffic, citing ​alleged violations of a ​ceasefire agreement by the U.S. and Israel, Iran’s ​Mehr state ​news agency reported.
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Keir Starmer reportedly considering stepping down as PM and could announce timetable for departure

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Keir Starmer reportedly considering stepping down as PM and could announce timetable for departure

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British Prime Minister Keir Starmer is reportedly considering stepping down and could announce a timetable for his departure as early as Monday, according to a report published Saturday.

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Britain’s Observer newspaper reported that Starmer was discussing his future with his wife at his Chequers country residence before making a final decision.

The outlet reported that senior Labour Party figures expect a statement addressing his future as early as next week.

A government source told Reuters that Starmer remains focused on governing and pointed to previous comments in which he vowed to remain in office.

AS EPSTEIN-LINKED APPOINTMENT SPARKS BACKLASH, UK PM STARMER FACES PARTY REVOLT AMID RESIGNATION CALLS

British Prime Minister Keir Starmer awaits Switzerland’s Federal President Guy Parmelin on the sidelines of the G7 summit, in Evian-les-Bains, France, Tuesday. (Isabel Infantes/Pool Reuters via AP)

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Fox News Digital has reached out to the prime minister’s office for comment.

Pressure on Starmer has been building for months amid growing dissatisfaction within his party and concerns over the government’s handling of the economy and cost-of-living issues.

The political threat to Starmer intensified Friday after rival Andy Burnham won a seat in Parliament, positioning him to mount a formal leadership challenge.

LABOUR MP PUTS CABINET ‘ON NOTICE,’ THREATENS TO TRIGGER LEADERSHIP CHALLENGE AGAINST STARMER BY MONDAY

Britain’s Labour party candidate Andy Burnham speaks to supporters after the Makerfield by-election in Ashton in Makerfield, England, Friday. (Jon Super/AP)

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Starmer congratulated Burnham following the victory, writing on X that voters, “chose Labour’s campaign of hope and optimism over division and hate.”

When asked about Burnham’s apparent ambitions to replace him, Starmer insisted he intends to remain in office.

“I’ve said repeatedly I’m not going to walk away from that,” Starmer said.

UK’S STARMER JUGGLES TROUBLE AT HOME AS HE WALKS GEOPOLITICAL TIGHTROPE WITH TRUMP

Sir Keir Starmer is battling to save his position and refusing to stand aside despite dozens of Labout MP’s demanding he resigns. (Leon Neal/Getty Images)

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Starmer has led the Labour Party since 2020 and became prime minister in 2024.

Calls for his resignation intensified last month, with more than 100 Labour lawmakers publicly urging him to step aside or set out a timetable for his departure. Several parliamentary aides also resigned in protest.

The internal revolt followed a series of disappointing local election results for Labour, which lost hundreds of council seats across England, surrendered long-held ground in Wales and fell behind political rivals in Scotland.

UK Prime Minister Keir Starmer speaks a news conference at Downing Street in London, March 5. (Tolga Akmen/EPA/Bloomberg via Getty Images, File)

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Starmer’s popularity has also declined amid a persistently high cost of living, sluggish economic growth and criticism over his acceptance of gifts from wealthy donors.

Fox News Digital’s James Cirrone and Emma Bussey, and Reuters contributed to this report.

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