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In this premiere episode, host Karla Grossenbacher is joined by Seyfarth litigator Paul Yovanic for a timely conversation on biometric privacy in the workplace. They discuss the shifting regulatory landscape, including Colorado’s new biometric privacy law going into effect July 1, 2025, and how employers can prepare for evolving compliance obligations, even in states without private rights of action.

The conversation dives deep into emerging litigation trends under Illinois’ Biometric Information Privacy Act (BIPA), from the sufficiency of consent to overlooked biometric technologies like driver-facing cameras and voice-activated tools. Whether you’re advising on policy or facing potential exposure, this episode is packed with insights for staying ahead of biometric privacy risk.

Point Two L&E Nation · Workplace Privacy Podcast Series: Biometric Privacy Risks in the Modern Workplace

Read the full transcript here. 

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By: Jacob J. Roes and Kyle D. Nelson

In the ever-evolving landscape of employment law, Washington employers find themselves at the crossroads of compliance and litigation, especially when it comes to handling wage complaints. The recent Washington State Supreme Court opinion involving Cannabis Green, LLC, sheds light on the intricate dance between employers and the Department of Labor and Industries (L&I).

A Tale of Informal Directives

Imagine you’re the captain of a ship, navigating through the stormy seas of wage and hour laws. Suddenly, you receive a message from the lighthouse—it’s L&I, signaling potential violations. But here’s the twist: the message isn’t a formal decree, nor does it specify the exact amount of treasure (wages) owed. Instead, it’s an informal directive to resolve the alleged wage violations for an unspecified amount.

In the case of Cannabis Green, LLC, an employee alleged that the company failed to pay her overtime wages for hours worked across all three of its stores. During its investigation, L&I uncovered potential wage and hour violations affecting other employees. According to L&I, Cannabis Green failed to fully comply with L&I’s demands for payroll records and work schedules. In August 2021, L&I proposed a settlement agreement, which Cannabis Green rejected. L&I then brought suit alleging various wage claims, including those uncovered in the investigation.

The Spokane County Superior Court ultimately dismissed L&I’s complaint, agreeing with Cannabis Green that L&I was required to first issue a formal order directing the employer to pay a specific amount before initiating legal action. The Court of Appeals affirmed the dismissal, holding that L&I must make a formal determination and order the payment of wages owed prior to filing suit.

However, the recent Washington Supreme Court’s decision revealed that such informal directives are not just whispers in the wind; they hold the power to fulfill statutory requirements, allowing L&I to initiate legal action without a formal order. At the heart of the Supreme Court’s order was its reasoning that L&I may not be able to calculate a specific sum if the employer withholds records during the investigation.

The Court’s Compass

The Supreme Court reversed the lower courts’ decisions, which had dismissed L&I’s complaint due to the absence of a formal order. This ruling underscores the importance of taking any informal signals from L&I seriously.

Implications for Employers: A Call to Action

For Washington employers, it’s a reminder that the absence of a formal order doesn’t equate to safety from litigation. Employers should ensure they have robust systems in place to address wage complaints promptly and thoroughly. If such complaints end up in an L&I investigation, the employer should be aware that its decision to defend itself against L&I’s informal directives could lead to full blown litigation. Finding a way to cooperate with L&I, which may include providing documents and information that the employer believes is burdensome or beyond the scope of the investigation, can be the difference between smooth sailing and a costly legal storm.

The Cost of Ignoring the Lighthouse

The opinion also highlights a crucial aspect: if L&I prevails in such cases, it is entitled to recover its attorneys’ fees. This adds another layer of urgency for employers to focus on wage and hour compliance, including addressing internal wage complaints before they ever get to L&I. e.

Conclusion: Steering Towards Compliance

As Washington employers navigate the complex waters of wage complaints, the Supreme Court’s opinion serves as both a map and a warning. It’s a story of informal directives wielding formal power, urging employers to steer their ships towards compliance and away from the rocky shores of litigation. So, as you chart your course, remember to keep an eye on the lighthouse and its compliance signals.

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By: Lilah Wylde and Alison Silveira

On June 6, 2025, Judge Claudia Wilken of the Northern District of California granted final approval of the landmark House v. NCAA settlement, clearing the way for NCAA Division I schools to directly compensate student-athletes for the first time in history. While the headlines trumpet a $2.576 billion payout and the fall of amateurism’s last vestiges, what lies beneath for colleges and universities is a regulatory transformation as sweeping as it is uncertain.

The Basics: What the Settlement Does

At its core, the settlement achieves three things:

  1. Monetary Relief: The NCAA and the Power Five conferences will pay $2.576 billion over ten years to former and current Division I athletes across a wide range of sports, compensating them for past restrictions which prohibited college athletes from receiving compensation for use of their name, image, and likeness (NIL) and related antitrust claims.
  2. Future Compensation Structure: Starting in the 2025–26 academic year, Division I schools that opt into the settlement can share a capped amount of athletic revenue —initially estimated at $20 million per institution—directly with athletes.
  3. Rule Reforms: The settlement ushers in a new era of NCAA rules, including eliminating scholarship caps, implementing roster limits, and establishing a more structured system of NIL enforcement by including arbitration rights for student-athletes and narrowly tailored restrictions on payments from “Associated Entities and Individuals,” such as major donors or affiliated collectives.

What This Means for Schools

For university counsel and compliance officers, the changes are nothing short of tectonic. Here’s what matters now:

1. Compliance Is Now a Competitive Imperative

Under the terms of the settlement, the five Power Conferences—the ACC, Big Ten, Big 12, Pac-12, and SEC—are automatically bound by the new rules. All other Division I conferences and member institutions must choose whether to affirmatively opt in by June 15, 2025, to share in the settlement’s benefits and protections and to implement the new revenue sharing model.

For schools electing to join, institutions must design and implement:

  1. New revenue sharing policies for athletes, ensuring that all financial benefits provided to athletes fall within the designated cap and comply with NCAA reporting.
  2. Eligibility and roster management protocols must be updated in light of the settlement’s elimination of scholarship limits and the introduction of new roster limits. While schools now have more flexibility in awarding scholarships and providing athletes with other financial benefits during their tenure as students, they must comply with team-specific roster maximums (with limited exceptions specifically for athletes who were promised roster spots before the settlement was approved).

Cross-functional coordination—between the athletic departments, legal, finance, and enrollment offices—is essential. Failure to prepare now could create recruiting disadvantages, Title IX compliance risks, and administrative chaos come fall.

2. Title IX Uncertainty Looms Large

The settlement does not resolve whether athlete pay must be allocated in a gender-equitable manner under Title IX. This unresolved legal question poses enormous implications. A misstep here could open institutions to costly and high-profile lawsuits.

While Judge Wilken’s opinion explicitly carved out future Title IX claims as “unreleased” under the settlement, she did not offer a roadmap for compliance. Female athletes have already voiced concern about disproportionate payouts.

Action step: Institutions may want to consider modeling multiple Title IX-compliant allocation scenarios with legal counsel.

3. Challenge to Employment Status of Athletes Remains Outstanding.

Although Judge Wilken expressly declined to address whether student-athletes are employees under federal or state law, the question is far from settled—and the House settlement does not insulate institutions from that legal frontier.  

The leading case to watch is Johnson v. NCAA, currently on remand to the United States District Court for the Eastern District of Pennsylvania.  In that case, former Division I athletes allege that they were employees of the NCAA and the universities that they attended, under the Fair Labor Standards Act (FLSA) and related state laws, and are entitled to minimum wage and overtime pay. While the NCAA and university defendants have moved to dismiss the Complaint, if the court denies that motion and ultimately rules in favor of the athletes, it could significantly expand wage-and-hour exposure for Division I schools.

In this post-House landscape, and with Johnson pending, schools should proceed cautiously, and:

  1. Review the structure of any revenue provided by the university to its athletes, to ensure that such revenue is not compensation for services under traditional employment tests;
  2. Avoid conditioning revenue payments on performance or hours worked; and
  3. Coordinate messaging and documentation to distinguish revenue payments from wages—emphasizing educational and participation-based rationales, where appropriate.

The Litigation Shield—and What It Doesn’t Cover

The settlement insulates the NCAA and participating schools from future damages claims involving NIL or athlete services compensation through 2024. But this is not a litigation armistice. As Judge Wilken noted, claims under labor law, tax law, and Title IX remain viable.

Rule Reforms: Redefining NIL Enforcement and Institutional Risk

Going forward, the NCAA may only prohibit athletes from receiving direct compensation from “Associated Entities” and “Associated Individuals”—i.e., major donors or affiliates tied to a school’s athletics program. Even then, restrictions apply only if the payment lacks a valid business purpose (i.e., is pay for play) and/or is not at fair market value relative to similarly situated endorsement deals with individuals who are not college athletes.

These standards introduce a new compliance burden, requiring schools to evaluate NIL arrangements through a commercial lens.  For a deeper breakdown of what “valid business purpose” and “fair market value” mean under the settlement—and how institutions should prepare to document them—see our previous article on the new NIL oversight regime.

Practical Takeaways for Schools

  1. Structure Contracts to Avoid Unintentional Triggers of Employment Status. With Johnson v. NCAA pending and the FLSA’s “economic realities test” in potentially in play, institutions must ensure that revenue sharing arrangements with athletes do not resemble wages for services.  Work with legal counsel to carefully structure revenue sharing agreements, to avoid:
    • Tying revenue sharing to athletic performance or hours logged;
    • Referring to benefits as “salary,” “pay,” or “compensation”;
    • Failing to distinguish the educational or participation-based rationale behind benefit delivery.
  2. Budget for Multi-Year Compensation Obligations. The new revenue sharing structure is not optional for Power Five schools, or any other school that opts into House. Schools must model how to generate – and then allocate – potentially significant revenue – initially capped at $20M – to athletes, over the long term. Careful financial planning and revenue generation plans should address both cash flow and long-term competitive parity. 
  3. Prepare for Rigorous Title IX Scrutiny. Even though the settlement does not require revenue sharing arrangements to be equitably distributed across genders, it explicitly preserves future Title IX claims. Schools must proactively model and assess whether revenue sharing arrangements create disparate impacts across male and female athletes. Legal counsel should be involved early to align revenue sharing structures with existing participation and benefit equity obligations.
  4. Implement the Required NIL Compliance Framework. Schools opting into the Injunctive Relief Settlement are required to implement the 12-step compliance process developed by Deloitte.
  5. Update Roster Management and Financial Aid Systems. The removal of scholarship caps and addition of roster limits demand realignment of eligibility, roster, and aid tracking systems. Athletes displaced by these changes—“Designated Student-Athletes”—must retain eligibility and roster status for the remainder of their careers.
  6. Formalize Internal Oversight and Documentation Protocols. The settlement’s enforcement mechanisms—especially neutral arbitration and required reporting—mean schools need robust paper trails. Key components include:
    • Written athlete review sharing and NIL policies;
    • Internal audit checkpoints and compliance signoffs;
    • Arbitration response protocols and case tracking systems.

The final approval of the House settlement is not the end of the amateurism debate—it’s the beginning of a new compliance-driven chapter in college sports. The schools that treat this not just as a legal development but as an operational pivot will be best positioned to compete—on the field and in the courtroom.

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By: Leon Rodriguez and Matthew Parker

Seyfarth Synopsis: On May 29, 2025, the U.S. Court of Appeals for the Third Circuit held in Oldham v. Pennsylvania State Univ., No. 22-2056 (3d Cir. May 29, 2025) that Title IX may allow for claims by non-students and non-employees. In the Title IX context, as the court found, the “zone of interests” test requires the recipient of Title IX funds to (1) exercise substantial control over the individual who mistreats the plaintiff based on sex, and (2) have substantial control over the context in which the mistreatment occurred or manifested. With these requirements in mind, the Third Circuit ruled that a fencing coach, unaffiliated with Penn State, could sue the University for the misconduct of its employees in certain contexts.

Factual Background

In December 2017, Jennifer Oldham, a fencing coach from North Carolina, was sexually harassed by George Abashidze, an assistant fencing coach at Penn State, on a flight following a USA Fencing competition. Ms. Oldham reported the incident to her mentor, who informed Penn State’s head fencing coach, Wieslaw Glon. Despite several meetings with Ms. Oldham, Mr. Glon refused to report the harassment to Penn State’s Athletic Department and discouraged her from contacting SafeSport, an independent organization tasked with investigating sexual misconduct for USA Fencing.

Ms. Oldham chose not to report the incident, but unbeknownst to Ms. Oldham, the incident was later reported in 2018 to both Penn State and SafeSport. Both investigations substantiated her claims, but although SafeSport temporarily suspended Mr. Abashidze, Penn State found no violation of its policy. Subsequently, Ms. Oldham faced retaliation from Mr. Glon and Mr. Abashidze who sought to discredit her within the fencing community. This led to professional setbacks, including being ostracized by the fencing community and denied coaching positions at other universities.

Frustrated by the lack of disciplinary action and ongoing retaliation, Ms. Oldham filed a Title IX complaint and later sued Penn State, Mr. Abashidze, and Mr. Glon. After the case was transferred to the Middle District of Pennsylvania, Ms. Oldham amended her complaint to include two Title IX claims. The district court then dismissed both claims against all defendants. Notably, with respect to Penn State, the district court ruled that Ms. Oldham, as neither a student nor employee of Penn State, was outside Title IX’s protected zone of interests. Ms. Oldham appealed, prompting this review by the Third Circuit.

The Third Circuit Expands Title IX’s Zone of Interests

In finding Ms. Oldham’s claims within Title IX’s protected zone of interests, the Third Circuit relied on Title IX’s language and Supreme Court precedent. Title IX states: “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .” Though initially interpreted narrowly, the Civil Rights Restoration Act of 1987 expanded “program or activity” to include “all of the operations of . . . a college, university, or other postsecondary institution.” In line with its own precedent in Doe v. Mercy Cath. Med. Ctr., 850 F.3d 545 (3d Cir. 2017), the Third Circuit interpreted Title IX’s scope as covering “operations of colleges and universities that may be reasonably considered, at least in part, educational.”

Yet, the court recognized that the clear-statement rule requires further limitations. Because the clear-statement rule mandates that recipients of federal funds must be on notice of any conditions of the funding, including exposure to civil liability, the court followed Supreme Court precedent, Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999), in requiring two conditions for Title IX liability: the college or university must “exercise substantial control” over (1) the individual who discriminates on the basis of sex and (2) the “context” in which the misconduct occurs or manifests.

The Third Circuit found Ms. Oldham’s claims plausibly met both criteria. First, Mr. Abashidze and Mr. Glon were both Penn State employees representing the university at fencing events where the alleged sexual harassment and retaliation occurred, supporting a finding that Penn State exercised substantial control over the defendants.

Second, although the sexual harassment did not occur on campus, the court found non-campus contexts may still fall within Penn State’s substantial control. While Ms. Oldham’s complaint lacked a clear basis for inferring Penn State’s substantial control over the flight where the sexual harassment occurred, the court highlighted, in dicta, the possibility of substantial control on a chartered flight with university-affiliated students and staff.

Moreover, the court emphasized that Ms. Oldham’s retaliation claims featured conduct occurring or manifesting on campus and at university-hosted events. Notably, the court recognized that not only could Mr. Glon’s and Mr. Abashidze’s conversations that occurred on campus as part of the discrediting campaign infer Penn State’s substantial control, but Ms. Oldham’s retaliatory exclusion from fencing events that manifested at Penn State-hosted events could also reasonably infer substantial control. Although several of Ms. Oldham’s allegations likely do not infer any substantial control by Penn State, such as the hiring decisions of other universities, the court held that Ms. Oldham had plausibly plead that her claims fell within Title IX’s zone of interests. Accordingly, the Third Circuit vacated the district court’s dismissal of Ms. Oldham’s Title IX claims against Penn State and remanded for further proceedings.

Future Impact

Ultimately, Oldham stands to broaden the scope of Title IX liability, suggesting that even individuals unaffiliated with the institution may bring claims for sex-based discrimination committed by university students or employees and related to university activities. As of now, it is unclear whether other jurisdictions may follow the Third Circuit’s lead, or how the Department of Education, Office of Civil Rights (OCR) may seek to adjust, if at all, its enforcement posture of Title IX complaints. In the meantime, educational institutions may wish to ensure their Title IX policies feature comprehensive measures that protect all individuals who interact with their programs, fostering an environment free from sex-based harassment and retaliation.

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By: Charlotte Hodde and Josh Goldberg

Some Washington healthcare employers will be subject to new rules for meal and rest break starting next year. Moving forward, under RCW 49.12.480, there are new hoops employers must jump through in order to secure waivers for certain meal and break time requirements, which means updates to handbook policies and the waiver form.

Under the current law, non-exempt hospital employees who are directly involved in patient care or clinic services may waive any meal break as long as it is voluntary and the waiver is provided in advance of the meal break. Effective January 1, 2026, meal breaks may be waived for any healthcare employee with a shift of less than eight hours.  Employees with longer shifts may also waive their second or third meal break, but only if they already take at least one meal break during their shift.

The amendments preserve employees’ ability to skip their meal and rest breaks in the event of an unforeseeable emergent circumstance, or clinical circumstance that may lead to a significant adverse effect on the patient, regardless of their shift length.

An employer and employee may also agree to relax the timing requirements of their meal and rest breaks.  In these cases, the new meal break must still occur no earlier than the third hour worked and no later than the second to last hour scheduled.

The amendments provide some new flexibility that permits employees to combine any number of meal breaks with any number of rest breaks, provided the shift is eight hours or longer. When this occurs, the rest break portion will remain paid and meal break may remain unpaid in accordance with an employer’s policies and/or collective bargaining agreement.

Waiver forms must satisfy several requirements and must:

  • Be in writing or kept in a retrievable electronic recordkeeping format;
  • Expressly state waivers are voluntary, may be revoked at any time, and cite the Washington Labor and Industries’ rule governing meal and rest breaks;
  • Cite any other rights employees may have under any applicable collective bargaining agreement provision;
  • Be on a form agreed to by any applicable collective bargaining organization; and
  • Be agreed to before the first shift that the employer and employee wish to rely on the waiver.

Since employees may also rescind their waivers at any time, employers should provide clear guidance on how employees should revoke their waiver.

Currently, covered hospitals must provide quarterly reports regarding the number of missed meal and rest breaks. The amendments add on to the quarterly reporting requirement, requiring covered hospitals to also track and report the number of waived meal and rest breaks (rest breaks cannot be waived entirely, only the timing of such breaks).

Seyfarth Shaw LLP provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from their professional advisers.

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By: Ada Dolph and Chris Robertson

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Welcome to Decoding Appeals, where Seyfarth’s Appellate Team brings to in-house counsel our insights and expertise from the front lines of the appellate courts. Throughout this short video series, we break down the nuances of appellate advocacy, sharing tips and lessons we’ve learned to help companies’ in-house legal teams understand the complexities of the appeals process.

In this episode, Ada Dolph and Chris Robertson explore the intricate world of interlocutory appeals – an often-critical component of appellate strategy. They cover the strategic use of § 1292(b) certification, how and when to leverage Rule 23(f) for class certification appeals, the circumstances that support using Rule 54(b) to appeal partial final judgments, and the extraordinary remedy of mandamus, including when it may be warranted.

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By: Lilah Wylde and Alison Silveira

Seyfarth Synopsis: The proposed House v. NCAA settlement introduces a first-of-its-kind enforcement regime for college athlete compensation, shifting oversight from the NCAA to the power conferences. It establishes a 12-factor fair market value review—administered by Deloitte—for third-party NIL deals over $600, with binding arbitration available to resolve disputes. While school-funded revenue sharing is subject to separate oversight, the framework reflects a blueprint for how compliance in college sports may evolve.

The proposed settlement in House v. NCAA, currently pending before Judge Claudia Wilken in the U.S. District Court for the Northern District of California, marks a potential sea change in college sports. The plaintiffs challenge the NCAA’s and power conferences’ historical restrictions on both athlete NIL earnings and athletic revenue sharing, seeking damages and structural reform. The settlement outlines billions in potential backpay for athletes and proposes a new revenue-sharing model that would allow schools to pay up to approximately $20 million annually directly to athletes. Whether the court grants approval or the case proceeds to trial, House is reshaping how schools, conferences, and athletes prepare for the future of college athlete compensation.

The enforcement and oversight structure set forth in the current version of the settlement reveals a radical departure from business as usual in college sports—and a glimpse into what the future may look like.

Power Conferences Take the Helm: A Decentralized Enforcement Model

Unlike traditional NCAA regulations, the House settlement will not be enforced by the NCAA itself. Instead, the task of overseeing compliance will fall to the five power conferences—the Atlantic Coast Conference (ACC), the Big Ten Conference, the Big 12 Conference, the Pac-12 Conference, and the Southeastern Conference (SEC)—through a newly created Settlement Enforcement Committee. This committee will be responsible for implementing the agreement’s prospective terms, including:

  • A cap of approximately $20 million per year, per school, on direct, school-funded athlete compensation under the settlement’s revenue-sharing model;
  • A regulatory structure for third-party NIL agreements;
  • Periodic reporting and compliance certifications.

This marks a significant shift from centralized rulemaking to a decentralized, conference-driven enforcement model. It reflects growing skepticism of the NCAA’s role and recognition that member institutions may be better equipped—or at least more politically willing—to oversee this new compensation regime.

Deloitte’s NIL Clearinghouse: The 12-Factor FMV Review

To ensure that NIL payments made by third parties (e.g., collectives, brands, or boosters) are not used to circumvent the cap or mask pay-for-play schemes, the settlement introduces a detailed fair market value (FMV) review process for all third-party NIL deals valued over $600 (note, institutionally-provided revenue sharing through the House settlement will be reported by the institution through a different process.) This FMV review process of third-party NIL deals valued over $600 will be administered by Deloitte, serving as the independent NIL Clearinghouse.

Deloitte will evaluate third-party NIL deals using a 12-factor analysis, including:

  1. Athlete’s individual marketability and social media reach
  2. Athletic performance and public profile
  3. Type and scope of deliverables (appearances, content, etc.)
  4. Geographic market size and demand
  5. Deal duration
  6. Exclusivity clauses
  7. Renewability or extension terms
  8. Comparable market benchmarks
  9. Involvement of donors or booster entities
  10. Timing of the deal (relative to recruiting, transfers, etc.)
  11. Quality and completeness of documentation
  12. Red flags suggesting illegitimacy or inducement

Each deal will be reviewed to assess whether the compensation reasonably aligns with what the athlete could command in an open and competitive market.

When There’s a Dispute: Arbitration as the Final Word

If Deloitte determines that a third-party NIL deal does not reflect FMV under the settlement’s 12-factor analysis, the athlete, the payor (e.g., collective or brand), or the institution may dispute that finding through independent arbitration. This arbitration process is designed to resolve FMV disputes efficiently and confidentially, outside the NCAA’s traditional penalty structure or formal litigation.

The arbitrator’s role will not be to renegotiate deals, but rather to decide whether the rejected NIL agreement in fact complies with the FMV standards established by the House settlement. The arbitrator’s decision will be final and binding.

While this provides a path for challenging Deloitte’s determinations, it also introduces potential friction: athletes and payors must weigh the time and cost of contesting a valuation, particularly during sensitive periods such as recruiting, eligibility certification, or transfer windows.

Why This Matters: Compliance Risk, Athlete Autonomy, and Market Friction

The implications are sweeping. For schools, the new framework demands robust internal NIL compliance systems that can communicate with Deloitte, assist athletes with documentation, and remain in compliance with the remaining terms of the House settlement (assuming it is approved), including the institution’s own reporting requirements.

For athletes, the marketplace becomes more formalized—and more scrutinized. Deals that might have quietly proceeded under the old system will now be subject to documentation requirements and FMV reviews.

For third-party payors, including donor-funded collectives, this will be the first time that NIL transactions have faced compliance pressures. The combination of FMV scrutiny and the possibility of binding arbitration may deter high-dollar or loosely structured deals—especially those with timing or terms that raise red flags related to recruitment or inducement.

Finally, the Settlement Enforcement Committee, composed of representatives from the five power conferences, replaces the NCAA as the primary compliance body. How consistently and aggressively this committee enforces the rules remains to be seen—and will likely vary across conferences with different institutional priorities, resources, and cultures.

Looking Ahead: Contingent Compliance Amid Judicial Review

The entire system hinges on final court approval, which is not yet assured. Still, institutions are moving forward as if the framework will be approved—drafting policies, establishing compliance infrastructure, and preparing for a post-House landscape. For now, the best approach is proactive: prepare as if implementation is coming, while keeping a close eye on the court’s ruling.

Why This Matters: Compliance Obligations and Strategic Decisions for Schools

If approved, the member institutions in the Power 5 conferences—the ACC, Big Ten Conference, Big 12 Conference, Pac-12 Conference, and SEC—will be automatically bound by the House settlement terms and must prepare now for the rollout of capped revenue-sharing, Deloitte’s FMV reviews, and the associated arbitration framework.

For other Division I institutions, the decision is more complex: they have until June 15, 2025 to choose whether to opt into the settlement to access its liability shield and participate in the revenue-sharing structure. But opting in also brings the same compliance responsibilities—and potential costs. Schools weighing that choice must evaluate whether the long-term exposure of continued litigation outweighs the administrative and financial demands of settlement participation.

In either case, schools should begin building internal NIL review infrastructure, aligning legal and compliance teams, and preparing for a more formalized athlete compensation environment. Even before final approval, the settlement is setting new expectations—and competitive standards—for how institutions engage with NIL and revenue sharing.

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Seyfarth recently hosted a webinar entitled ‘Managing Cross-Border Sexual Harassment Investigations in Australia and Asia’, addressing the practical considerations that employers should be aware of when investigating allegations of sexual harassment in the workplace. This webinar highlighted relevant laws and examples from Australia, Hong Kong, Singapore, and the People’s Republic of China (PRC). Given the strong interest in this topic, we bring you a series of three blogs that highlight 10 key considerations.

Managing cross-border sexual harassment investigations in the Asia Pacific region presents unique challenges due to varying legal frameworks, cultural norms, and procedural requirements. This blog series aims to provide an outline to help navigate these complexities, focusing on the key differences in investigation procedures across the Asia Pacific region. By understanding these differences, organisations can ensure that their investigations are conducted fairly, efficiently, and in compliance with local laws.

Part one of this series covers our first three considerations – the definition of ‘workplace’ harassment, privilege, and investigation teams.

#1 – When is ‘workplace’ sexual harassment unlawful in each country?

This question affects when sexual harassment is a matter for employers, and can validly be the subject of an investigation. Remote work, social events, and other non-traditional settings can all raise complexities.

In Australia, sexual harassment is unlawful (and employer liability can arise) in a variety of circumstances where the harasser or victim is a worker, or where there is a relevant connection to work. This extends outside the boundary of a physical ‘workplace’ or ordinary working hours.

In the PRC, ‘workplace’ usually encompasses social activities closely related to work and company organised events, for example, a work Christmas party.

In Hong Kong and Singapore, ‘out of hours’ events may be considered part of the ‘workplace’ if there is a sufficient connection between the workplace or employment and the out-of-hours conduct engaged in by the employee. In Hong Kong, workplace sexual harassment can occur not just between employees but between any ‘workplace participant’, which includes contract workers, interns, and volunteers as well.

#2 – Establishing the scope of sexual harassment investigations

Being clear about the scope of a workplace investigation will help define the specific issues to be investigated, and what questions the investigator will (or won’t) answer. For an investigation to be thorough and effective, the scope must be clearly defined to ensure that it addresses all the relevant issues.

In Australia, it can assist to ensure the scope is recorded in writing, including what allegations are being investigated and whether the investigation will be limited to fact-finding.

In Hong Kong, the scope of the investigation is quite often limited to fact-finding, with advice on what action to take subsequent to the investigation (including any disciplinary action) being carried out by separate lawyers within the same firm (with information barriers put in place) or a different firm, so as to maintain the independence of the investigation. The position is similar in Singapore, but with a little more flexibility.

In the PRC, investigators play a more active role than other jurisdictions in deciding the scope of an investigation, as well as providing recommendations and participating in disciplinary proceedings.

#3 – How is privileged information protected during investigations?

Legal privilege varies significantly across jurisdictions. This affects the extent to which confidential communications and documents can be protected from requests or orders for disclosure.

Legal privilege in Australia can apply to confidential communications where the dominant purpose was for litigation or provision of legal advice. It is possible that investigation records and the final report can be protected by legal privilege where they were created for a privileged purpose. In Australia, a common cause of dispute is whether privilege has been waived by later disclosure or use of documents for other purposes or if promises have been made about what would be disclosed.

In Hong Kong and Singapore, where investigations are conducted on a pure fact-finding basis (i.e., no legal advice is provided) and litigation is not reasonably in contemplation at the time of the investigation, it can be more challenging to assert legal privilege over the investigation process and report. If a client wants an investigation to be conducted under privilege, this will need to be carefully considered when establishing the scope of the investigation and steps put in place to achieve the protection of privilege.

The PRC does not recognise legal privilege like common law jurisdictions do. Lawyers in the PRC have an obligation to maintain confidentiality and have the right to refuse disclosure of certain documents or information in order to protect clients’ trade secrets and personal data.

In part two of our series, we will look at who forms part of an investigation team, how location affects which laws apply to an investigation, and notification requirements.

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By: Lilah Wylde and Alison Silveira

On April 23, 2025, the U.S. District Court for the Northern District of California issued a significant order in House v. NCAA and two related antitrust class actions (collectively known as In re College Athlete NIL Litigation), tentatively approving portions of the NCAA’s proposed settlement—but stopping short of granting final approval. At issue: the NCAA’s premature implementation of Division I roster limits before securing judicial sign-off.

The court’s rebuke offers a stark reminder of how judicial scrutiny of class settlements—particularly Rule 23(b)(2) injunctive relief classes—can derail even the most sweeping attempts at structural reform. It also raises fresh compliance concerns for athletic departments navigating evolving name, image, and likeness (NIL) rules and pending litigation.

The Settlement: A Groundbreaking, Conditional Step

The proposed House settlement includes over $2.7 billion in back pay to college athletes and prospective revenue-sharing provisions. In a move lauded by some as ushering in a new era of college athletics, the NCAA and Power Five conferences also proposed future policy changes—chief among them, the introduction of team-specific roster caps intended to control expenses and facilitate revenue-sharing models.

Critically, the settlement created two classes: a Damages Class entitled to monetary relief and an Injunctive Relief Class, consisting of current and future Division I athletes whose rights are to be impacted by systemic NCAA reforms.

Judicial Pushback on Roster Limits

Despite “tentatively” approving most aspects of the agreement, Judge Wilken withheld final approval due to concerns that the immediate implementation of roster limits would irreparably harm certain athletes in the Injunctive Relief Class.  The Court expressed concern that these athlete’s “roster spot will be or has been taken away as a result of the immediate implementation of the settlement agreement, yet they will be deemed to have released their injunctive and declaratory relief claims as part of the settlement agreement.” . That, the court held, “is not fair,” and violates the equity requirements of Rule 23(b)(2).

The NCAA’s defense—that some class members might ultimately benefit from increased scholarship access—fell flat. Judge Wilken distinguished prior precedents cited by the parties, noting that none involved injunctive relief settlements that affirmatively harmed a subset of the protected class.

The court gave the NCAA 14 days to work with a mediator or magistrate judge to propose modifications, suggesting potential fixes such as grandfathering impacted athletes or phasing in roster limits gradually by attrition.

The NCAA’s Response: Operationalizing House—Now on Hold

On April 21, 2025—just two days before Judge Wilkin paused final approval—the NCAA Division I Board of Directors issued a statement conditionally approving rule changes designed to implement the House settlement. These reforms track closely with the core provisions of the settlement agreement and were crafted to bring NCAA policy in line with a new legal and economic reality.

Key elements of the proposed rules include:

  • Permission for schools to provide up to $20.5 million per year in direct financial benefits to athletes, mirroring the settlement’s revenue-sharing model;
  • Authorization for schools to offer full scholarships to all athletes on a declared roster, eliminating longstanding sport-specific scholarship caps;
  • Elimination of over 150 NCAA rules that previously constrained athlete benefits;
  • Establishment of centralized platforms for monitoring and reporting NIL activity;
  • Creation of an NCAA enforcement unit focused on compliance with the new framework.

The Board emphasized that these changes are contingent on final judicial approval of the House settlement.

The bottom line: while the NCAA has moved swiftly to align its policies with the anticipated future of college athletics, it may have moved too fast. Until Judge Wilkin grants final approval, these proposed reforms—however sweeping—remain aspirational and legally unenforceable.

Key Takeaways for Athletic Departments

  1. Hold the Line on Roster Changes: Institutions should suspend all compliance activity related to House settlement terms—especially roster limits—until a revised agreement receives final approval.
  • Monitor Judicial Developments: If Judge Wilken finds the parties’ modifications inadequate, she could deny approval outright, reigniting litigation on the merits—including Sherman Act claims.  Alternatively, if the Court feels that the parties’ proposed fix with respect to the Court’s concerns on roster limits could adversely impact class members, it may require a new round of notice to class members which could delay approval of the proposed settlement for months.
  • Prepare for a New Revenue Model: The Court has given the parties a road map to how to fix the settlement in a way that would allow it to approve the settlement and not require a new round of notice to class members.  If the parties are able to follow that road map, the Court appears poised to approve the settlement.    Colleges should prepare for a world in which they are permitted to share revenue directly with athletes, and work with counsel to prepare legally sound revenue sharing contracts that avoid inadvertently triggering other legal challenges.
  • Expect More Compliance Complexity: Schools must now juggle evolving NIL regulations, Title IX obligations, and emerging employment law theories—all in an uncertain legal landscape.

Conclusion

The House settlement may be the most ambitious attempt to reshape college athletics in decades. Judge Wilken’s April 23, 2025 order is a reminder that structural reforms must not only promise equity, but actually deliver it. For universities, athletic departments, legal counsel, and compliance officers, the next few weeks will be critical as the NCAA and the plaintiffs attempt to salvage a deal that has already changed the game.

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By: Annette Tyman, Rachel V. See, Andrew L. Scroggins, and Christopher J. DeGroff

Seyfarth Synopsis: On April 23, 2025, President Trump issued an Executive Order entitled “Restoring Equality of Opportunity and Meritocracy.” The Order declares a sweeping new federal policy: “It is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.” The Order directs all federal agencies, including the EEOC and Department of Justice, to deprioritize any enforcement and litigation regarding disparate impact claims. It further directs agency heads across the federal government to assess all existing regulations, guidance, rules, or orders (including existing consent judgments) that impose disparate-impact liability, and detail steps for their amendment or repeal within 30 days. Beyond the immediate implications for employers facing government litigation or enforcement actions, the Order has significant ramifications in the selection and testing arena, including for AI developers and deployers, as it signals that the federal government under the current administration will not allocate investigation, enforcement, or litigation resources into disparate impact claims against employers using AI tools or other tests. This dramatic shift away from what had been an enforcement priority creates complex interactions with private rights of action under Federal law, state law protections, and local ordinances that continue to recognize disparate impact liability.

Disparate impact liability is a legal theory contending that practices that appear neutral on their face can still be considered discriminatory if they disproportionately and adversely affect members of protected classes. Disparate impact liability is part of existing civil rights laws not just in employment, but in housing, education, credit and lending, government contracting, and other areas. The theory was first established by the Supreme Court in 1971 in Griggs v. Duke Power, 401 U.S. 424 (1971), which held that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation”. In 1991, Congress amended Title VII to add Section 703(k), which codified how “an unlawful employment practice based on disparate impact” could be established.

The Order and its accompanying fact sheet stake out a different position that characterizes disparate impact theory as fundamentally at odds with constitutional principles. The fact sheet states that disparate impact theory “violates the Constitution’s guarantee of equal treatment for all by requiring race-oriented policies and practices to rebalance outcomes along racial lines” and that it “undermines civil-rights laws by mandating discrimination to achieve predetermined, race-oriented outcomes.” Section 1 of the Order further states, “Disparate-impact liability imperils the effectiveness of civil rights laws by mandating, rather than proscribing, discrimination.”

This leaves employers in choppy waters. The Executive Order directs federal agencies to shift their enforcement priorities and resources away from disparate impact claims, revokes existing Presidential approvals of regulations, and sets in motion further agency rulemaking and guidance to cease the federal government’s actions supporting disparate impact liability. However, the Executive Order does not change Section 703(k), or any of the case law interpreting and applying disparate impact theories of liability over the past five and a half decades, so employers still must contend with disparate impact claims brought by the private plaintiffs’ bar.  

Via the April 23, 2025 Order, the administration has communicated its intent to move away from disparate-impact liability, which includes:

  • Revoking regulations and other guidance that support disparate-impact liability;
  • Deprioritizing enforcement based on disparate-impact liability, including the enforcement of previously entered consent decrees and other agreements;
  • Evaluating whether state laws that incorporate disparate-impact liability theories may be preempted by federal authority; and
  • Issuing guidance to employers about promoting equal access to opportunity without regard to whether an applicant has a college education.

Section 2 of the Order provides the fundamental policy of the administration as it unambiguously states, “it is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.”

Section 3 of the Order revokes prior Presidential approvals of regulations applicable to programs and activities receiving federal financial assistance under Title VI, as enforced by the Department of Justice.

Section 4 of the Order directs federal agencies to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability,” with explicit reference to Title VII employment discrimination provisions and Title VI regulations.

Sections 5, 6, and 7 of the Order together instruct federal agencies to identify and evaluate existing disparate impact frameworks across the federal government, including regulations, guidance, rules, or orders that impose disparate impact liability, then plan for their amendment or repeal.

Section 6 has particular relevance to employers, as it requires the Attorney General and EEOC Chair to assess “all pending investigations, civil suits, or positions taken in ongoing matters . . . that rely on a theory of disparate-impact liability,” And it requires all agencies to “evaluate existing consent judgments and permanent injunctions” premised on the theory. Once identified, agencies are to take “appropriate action” consistent with the Order’s policy. Given the broad language in the Order, “appropriate action” could include dismissing existing litigation in whole or in part, withdrawing amicus briefs, curtailing or ending pending investigations, modifying or halting conciliation agreements and consent decrees, and scaling back other enforcement activity.

The mandate to assess pending investigations and litigation extends to the Department of Housing and Urban Development, Consumer Financial Protection Bureau, Federal Trade Commission, and other agencies enforcing laws such as the Equal Credit Opportunity Act and Fair Housing Act.

Section 7 directs the Attorney General to determine whether federal authorities preempt state laws imposing disparate impact liability and to take “appropriate measures” in response to any identified “constitutional infirmities.”  Section 7 also instructs the Attorney General and EEOC Chair to jointly formulate guidance to employers about promoting equal access to opportunity without regard to whether an applicant has a college education.

Implications for Employers Using Selection Procedures, Including Artificial Intelligence

Section 1 of the Order asserts that disparate-impact liability has “hindered businesses from making hiring and other employment decisions based on merit and skill, their needs, or the needs of their customers because of the specter that such a process might lead to disparate outcomes, and thus disparate-impact lawsuits.” This assertion has particular relevance for employers using selection procedures or other processes that use artificial intelligence in their hiring and employment processes. The EEOC’s previous technical assistance on AI systems, issued on May 18, 2023, which has subsequently been revoked, asserted that existing law covered AI systems that produced disparate outcomes.

The Order creates a notable shift in this enforcement landscape, because it makes clear that the federal government will no longer prioritize investigations or enforcement actions based solely on statistical disparities in hiring outcomes. For employers using algorithmic decision-making systems, whether or not these systems are being deployed to make or assist in employment decisions, this policy shift means that the federal government is unlikely to pursue investigations or litigation alleging that the use of algorithms, including AI, has resulted in unlawful discrimination.

However, this backing away from enforcement at the federal level does not does not relieve employers of their obligations. First, disparate impact liability was codified into law by Congress in 1991, and private litigants retain the right to bring disparate impact claims under Title VII regardless of the federal government’s own enforcement priorities. It remains to be seen if the private plaintiff’s bar will pick up this challenge. The EEOC has long touted that, at least as far as disparate impact in hiring is concerned, it is “uniquely positioned to combat systemic hiring discrimination” based on its access to employer applicant and hiring data.  Complex “systemic” discrimination cases present a challenge for private lawyers given the high costs of necessary experts and the inability to track down potential claimants.  Time will tell if private litigants will fill any void created by the EO.

Additionally, several states and local units of government have enacted their own fair employment laws that recognize disparate impact liability, and these laws currently remain unaffected by federal enforcement decisions. For example, disparate impact components are present in local laws like New York City’s Human Rights Law and a new proposed rule from New Jersey’s Division on Human Rights.  States like Colorado and Illinois have already passed new laws intended to address unlawful bias arising out of an employer’s use of AI for employment decisions, and many other state legislatures are considering new laws. Furthermore, multiple groups from industry and civil society have advanced standards and practices for evaluating AI systems that address potential disparate impacts on the basis of sex, race, and other protected characteristics. As noted above, however, this administration will be examining potential preemption of these laws and rules. 

The Shifting Compliance Landscape

The divergence between federal enforcement priorities and existing statutory provisions and case law, and state and local laws, creates significant compliance challenges for employers. Employers and service providers should not interpret the April 23 Order as eliminating all exposure to disparate impact liability claims. Rather, employers and service providers should understand the Order as reflecting a change in federal enforcement priorities and be mindful that it may not extend to state and local laws and enforcement, or private litigants pending additional action, including efforts to “preempt” state or local laws.

Employers using AI-based tools or other selection procedures should continue to closely monitor developments at the federal and state levels, as well as private litigation trends and evolving global action. Employers should also understand how these efforts interact within the broader legal landscape, including but not limited to the Administration’s positions regarding diversity, equity, and inclusion and “merit based” employment practices, in which these federal priority shifts are occurring.

Seyfarth Shaw will continue to monitor these developments and provide updates as they occur. For more information on how these changes may affect your workplace policies and compliance obligations, please contact any of the authors or your Seyfarth attorney.

Seyfarth Shaw LLP provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from their professional advisers.