A Case Study in NIL Era NCAA Compliance

If you have not seen or read about the Supreme Court’s decision in National Collegiate Athletic Association v. Alston at this point, you might be living under a rock. For a quick refresher, or an initial introduction, to the Name, Image, and Likeness (“NIL”) era in college sports, Conduct Detrimental has you covered – The NIL Era Is Here! Because the NIL era is still in its wild, wild West phase, it is important to highlight how universities have chosen to lean in and approach the NIL era as an opportunity to empower and further educate student-athletes. While the focus of this post will be the University of Tennessee, the University of North Carolina, Florida State University, and the University of Colorado are a few other case studies in how a university can adjust to the changing landscape in college athletics in a manner that is consistent with its athletic and academic goals.

The first step the University of Tennessee took as it entered the NIL era was to partner with faculty members – Dr. Courtney Childers, an Associate Professor in the School of Advertising and Public Relations, Lynn Youngs, a Senior Lecturer in the Haslam College of Business and Executive Director of the Anderson Center for Entrepreneurship & Innovation, and Brian Krumm, an Associate Professor at the College of Law, among many others. These faculty partnerships were sought out to help the school craft comprehensive policies and procedures and to provide student-athletes with resources to help them understand and navigate the various business, ethical, marketing, and legal issues associated NIL opportunities. In addition to faculty partners, Tennessee brought on a third-party partner, Altius Sports Partners, to provide an outside perspective on how to best serve the university’s student-athletes while remaining compliant with the NCAA’s rules.

While the general approach is to encourage student-athletes to pursue NIL opportunities and to provide them with the resources and mentorship to make smart decisions, Tennessee’s program still grants the university with significant discretion to shut down certain NIL activities. Student-athletes are expressly prohibited from pursuing and taking on opportunities that promote gambling, tobacco, alcohol, or adult entertainment. Tennessee made sure, however, to also reserve the right to prohibit activities that “are reasonably considered to be in conflict with UT values.” If you are an attorney reading this post, you probably understand that “reasonableness” is a mushy concept that can change constantly from person to person and from scenario to scenario. Combine that with the equally undefinable concept of “UT values,” and the clear intent of the University of Tennessee is to ensure that its compliance department can adjust its stance on certain NIL opportunities as the university reviews and considers public response to NIL opportunities for its student-athletes and student-athletes at other universities. Finally, the university’s policy also states that “NIL activities should not conflict with a student-athlete’s academic or team-related obligations.”[1] As the saying goes, when it comes to defining a prohibited NIL activity, the University of Tennessee will know it when it sees it and be able to shut it down.

The university’s primary goal in implementing this type of compliance program is to provide ongoing, comprehensive education to all student-athletes about NIL “in an effort to assist them in capitalizing on and maximizing their opportunities in a responsible and effective manner,”[2] while retaining broad flexibility to prevent NIL opportunities that would reflect poorly on the university.

For the University of Tennessee’s compliance program, the NIL era represents an opportunity for further collaboration with its student-athletes to enrich their experiences as both students and as athletes, not a minefield that the university will need to navigate through implementation of restrictive policies and practices.

[1] Tennessee Athletics Name, Image and Likeness (NIL) Information & Guidance - University of Tennessee Athletics) [2] Tennessee Athletics Name, Image and Likeness (NIL) Information & Guidance - University of Tennessee Athletics)