In the wake of a settlement in the House, Hubbard and Carter cases, the courts now hold significant oversight over what college sports will look like in the future.
sports.yahoo.com
"According to documents sent to Yahoo Sports, 83% of the back pay — $2.3 billion — is expected to go to an estimated 19,000 football and men’s basketball players, many of them from power conferences. That is an average of about $120,000 per player over the 10-year period, or $12,000 a year.
The back-damages formula could guide how schools distribute revenue going forward. The first back payments are due this coming spring after, presumably, the settlement is approved by presiding Judge Claudia Wilken of the U.S. District Court of Northern California."
Third-party NIL and arbitration
One of the biggest looming uncertainties as part of the settlement agreement is its impact on third-party, booster-backed collectives. Collectives provide millions to athletes in, what many believe to be, cash incentives disguised as endorsement deals for the use of their name, image and likeness (NIL).
Language in the settlement seeks to eliminate or greatly reduce what many college leaders describe as “phony” NIL payments from booster organizations to athletes. The settlement does this through an assortment of rules and an enforcement mechanism that is protected through the court. For instance...
- Boosters — or any third-party entity or business, for that matter — are expressly prohibited from striking NIL deals with athletes unless they can prove the agreements are genuine with rates that align with “similarly situated individuals with comparable NIL value” who are not players at that school, the settlement reads.
- All third-party NIL deals of a $600 value or more must be approved by a newly created clearinghouse that is expected to vet the agreements for authenticity by using fair market value standards. For those deals not approved, the NCAA, conferences and/or a new third-party enforcement entity has authority to deem athletes ineligible and/or to fine schools for violations, as they do now.
- However, unlike now, those punishments can be appealed to an agreed-upon neutral arbitrator. The arbitration process, according to the settlement, is designed to be a more accelerated and neutral procedure than the NCAA’s current infractions situation, where committees of school representatives determine matters. The arbitrator must rule within 45 days of the beginning of the arbitration process, but an extension is possible. The arbitrator’s ruling is “final and binding,” according to the settlement.
- During arbitration, enforcement penalties — for instance, a player ruled ineligible — will be stayed until a ruling. Arbitrators have the power to request the production of documents and witness testimony. It’s unclear if that entails subpoena power.
Circumventing the cap
The settlement also seeks to eliminate ways for schools to use third-party NIL agreements to circumvent the annual revenue-sharing cap. For instance…
- The settlement gives the NCAA and leagues power to “adopt rules that prohibit any transactions designed to defeat or circumvent the cap,” it says.
- The settlement makes clear that school funds used by an outside entity to distribute to athletes will count against the revenue-sharing cap. This is a significant piece of information that seeks to eliminate the possibility of schools circumventing the cap by funneling institutional monies through multimedia rights holders, foundations, collectives and other agencies for athlete distribution — as some are currently doing. While that practice is permitted, the monies distributed are subject to the revenue-sharing cap, and NIL deals with athletes must be approved by the clearinghouse.
There is, however, one way to circumvent the cap.
As part of the revenue-sharing model, schools can serve as an athlete’s “marketing agent” for third-party NIL deals by entering into exclusive or non-exclusive endorsement agreements to purchase a player’s NIL.
This is the transaction that permits schools to share revenue with athletes, but it also does something else: Schools are permitted to procure outside, third-party NIL deals for their athletes that do
not count against the revenue-share cap, as long as those deals are proven to be authentic. Such a policy incentivizes schools to find organic endorsement deals for their athletes with brands and businesses. Schools can use a marketing agency to as well do this.
For instance, as part of its endorsement agreement with an athlete, a school can distribute revenue to that athlete while also using that athlete’s likeness in separate agreements with brands and businesses to generate more money. Player A, for example, receives $100,000 in revenue share from his school but also receives $50,000 from a third-party for an endorsement deal that is approved as authentic. The $50,000 is exempt from the revenue-sharing cap."