Philip Sheng spoke with
Over the last decade-plus, the NCAA has progressively lost efforts to preserve student-athlete amateurism in the multi-billion dollar college sports industry. The Ninth Circuit’s 2015 ruling in O’Bannon v. NCAA affirmed that the NCAA’s NIL prohibitions violated antitrust law, and the 2020 House complaint claimed the NCAA had yet to implement a new policy.
A judge approved the NCAA’s $2.8 billion settlement on June 6, which created a capped revenue sharing model that reaches back to 2016.
Branding deals worth $600 or more will now feed into NIL Go, software built by Deloitte to assess market value. Rejected deals can be reworked or appealed to the CSC, an entity established by major conferences.
The idea is to “get rid of this ‘fake’ NIL” that’s actually just a recruiting offer, sports and IP attorney Philip Sheng of Venable LLP said. The former Stanford University tennis player said the biggest question—one unlikely to ever be answered publicly—will be how Deloitte weighs the various factors that play into an athlete’s marketing value.
“We are in a black box scenario,” Sheng said.
A player’s sport, position, gender, skill, program, conference, and media market, along with the athlete’s particular obligations, impact value, attorneys said. Appearance, personality, social media following, and other attributes also subjectively influence value. Former NFL safety Troy Polamalu’s long flowing hair, for example, enhanced his value as a shampoo spokesman, Sheng said.
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