[chrisk]

It seems like these new "fair market value" rules will severely lower the level of NIL money available to athletes.  I doubt there would be justification under the new system for the $1mil paid to a woman softball pitcher.

You may be right.  I havent read the Alston case, only reports of it. It apparently was decided narrowly on educational benefits and didn’t reach pay for play. It was a unanimous case so all 9 justices agreed that NCAA rules preventing payments of educational benefits beyond tuition, room and board violated antitrust laws. At least one Justice ( Kavanaugh) seemed to believe any restriction agreed upon by schools that restricted what was paid to athletes was illegal. Presumably , he would allow pay for play. But that was not before the court so it’s not permitted nor is there any support for prohibiting it in the Alston decision.

There will almost certainly be efforts to do Texas Tech type deals, though probably without even tacit approval by the schools, in the future. If the NCAA, the conferences or the schools try and limit them , they will be challenged with a lawsuit that may well go back to the Supreme Court.  It’s not at all clear to me that the Supreme Court would agree that restricting such NIL deals is ok.  

Sorry for getting into the weeds . Just suggesting that we will not be free from “whatever consenting parties agree to” vs some formulation of fair value type of NIL deals in the future. If your going to try and be competitive, you have to be prepared to compete in a marketplace like the one existing today.

Right, there's a long way to go. Whatever happens, history will probably repeat itself. The NCAA will be awful at enforcement and the regulation will just lead to corruption. After all, before NIL, athletes were forbidden to take gifts from boosters and we all know how that played out. 

And who's to say what should pass a fair market value test? If some legitimate company (not a carwash) in SoCal that's owned by a USC booster is willing to pay Swain $200K to be their spokesperson, how does anyone go about determining if that passes the fair market value test? It's not $2M it's $200K. A negotiation between the two entities will occur and Swain's agent will certainly argue her "celebrity status" to get her top dollar. And of course other contracts across the country will be brought into play (e.g. "Hidalgo got $175K for her spokesperson contract and that was allowed, so Swain's should pass the test too"). USC gets her a few hundred K cash plus a handful of these third party contracts and voila, there's her $1M package. All legal. Over time, the values will continue to rise. There's no stopping it. The revenue sharing cash amounts coming from the colleges will be controlled, but the packages will skyrocket. In 5 years time, we'll be routinely seeing deals for the top stars in football and basketball in the multi-millions.

Back to Nunu...we are less than 2 months away from the transfer portal craze. If someone wants her, they can buy her as these new rules won't go into effect until later. I hope we get out the checkbook for her...

The House settlement is on point here, not the Alston case.

As mentioned in the NCAA Q&A, Deloitte is developing (operating?) the fair market value platform. There is an arbitration mechanism for disputes. How likely is it that $1 million payments will make through those steps?
Only athletes who already have developed a significant online presence, not very many HS recruits.

[chrisk]

It seems like these new "fair market value" rules will severely lower the level of NIL money available to athletes.  I doubt there would be justification under the new system for the $1mil paid to a woman softball pitcher.

You may be right.  I havent read the Alston case, only reports of it. It apparently was decided narrowly on educational benefits and didn’t reach pay for play. It was a unanimous case so all 9 justices agreed that NCAA rules preventing payments of educational benefits beyond tuition, room and board violated antitrust laws. At least one Justice ( Kavanaugh) seemed to believe any restriction agreed upon by schools that restricted what was paid to athletes was illegal. Presumably , he would allow pay for play. But that was not before the court so it’s not permitted nor is there any support for prohibiting it in the Alston decision.

There will almost certainly be efforts to do Texas Tech type deals, though probably without even tacit approval by the schools, in the future. If the NCAA, the conferences or the schools try and limit them , they will be challenged with a lawsuit that may well go back to the Supreme Court.  It’s not at all clear to me that the Supreme Court would agree that restricting such NIL deals is ok.  

Sorry for getting into the weeds . Just suggesting that we will not be free from “whatever consenting parties agree to” vs some formulation of fair value type of NIL deals in the future. If your going to try and be competitive, you have to be prepared to compete in a marketplace like the one existing today.

Right, there's a long way to go. Whatever happens, history will probably repeat itself. The NCAA will be awful at enforcement and the regulation will just lead to corruption. After all, before NIL, athletes were forbidden to take gifts from boosters and we all know how that played out. 

And who's to say what should pass a fair market value test? If some legitimate company (not a carwash) in SoCal that's owned by a USC booster is willing to pay Swain $200K to be their spokesperson, how does anyone go about determining if that passes the fair market value test? It's not $2M it's $200K. A negotiation between the two entities will occur and Swain's agent will certainly argue her "celebrity status" to get her top dollar. And of course other contracts across the country will be brought into play (e.g. "Hidalgo got $175K for her spokesperson contract and that was allowed, so Swain's should pass the test too"). USC gets her a few hundred K cash plus a handful of these third party contracts and voila, there's her $1M package. All legal. Over time, the values will continue to rise. There's no stopping it. The revenue sharing cash amounts coming from the colleges will be controlled, but the packages will skyrocket. In 5 years time, we'll be routinely seeing deals for the top stars in football and basketball in the multi-millions.

Back to Nunu...we are less than 2 months away from the transfer portal craze. If someone wants her, they can buy her as these new rules won't go into effect until later. I hope we get out the checkbook for her...

The House settlement is on point here, not the Alston case.

As mentioned in the NCAA Q&A, Deloitte is developing (operating?) the fair market value platform. There is an arbitration mechanism for disputes. How likely is it that $1 million payments will make through those steps?
Only athletes who already have developed a significant online presence, not very many HS recruits.