NCAA Issues New NIL Guidance

Last week, Division I leaders met and discussed the need to enforce the NCAA’s name, image, and likeness interim policy. After dropping hints that new guidelines were on the way, the Division I board of directors issued new name, image, and likeness (NIL) guidelines for schools to follow on Monday, May 9.

Despite the new guidelines, Division I leaders may have created more questions than answers.

New Guidelines

In an effort to curb the impact of collectives—a collection of boosters pooling resources to offer payments to athletes—the NCAA clarified its definition of a booster. Specifically, a booster includes a third-party entity supporting an NCAA institution by offering “NIL opportunities to prospective student-athletes (PSA) and student-athletes (SAs) of a particular institution.” Pursuant to NCAA rules, boosters cannot engage in recruiting activities on behalf of a school.

While the NCAA made it clear that pay-for-play agreements are impermissible, in an attempt to establish guidelines for permissible agreements, the NCAA offered minimal clarity. “NIL agreements must be based on an independent case-by-case analysis of the value that each athlete brings to an NIL agreement . . . .”

With that guidance, questions remain:

• Who will be independently evaluating each case?

• Who should be independently evaluating each case?

• How can the NCAA, or any other party, establish a player’s value?

Even though these questions remain unanswered, and thus, the review process remains unclear, the NCAA intends to hold the colleges and universities responsible for impermissible recruiting activities.

In the NCAA’s release, the NCAA noted that the policy applies retroactively. However, enforcement staff is only pursuing cases “that clearly are contrary to the published interim policy, including the most severe violations of recruiting rules or payment for athletics performance.” The minimal pursuit suggests that NCAA staff could be overwhelmed by a broad retroactive application of the rules and anticipates pushback to enforcing its policy, including lawsuits alleging antitrust violations in the wake of the United States Supreme Court holding in NCAA v. Alston that NCAA rules restricting compensation provided by schools to athletes could be antitrust violations.

This is just the start of the NCAA enforcing the interim NIL policy. Either way, with new guidelines, boosters will continue to evolve for their college or university to remain competitive on the field. Therefore, the new guidelines may merely be the first step in a never-ending pursuit of so-called “amateurism.”

Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com. He can be reached on Twitter @Landisbarber.