NCAA Issues New NIL Guidance Aimed at Boosters

The NCAA’s Division I Board of Directors issued new name, image, and likeness ("NIL") guidance on Monday to clarify the NCAA's existing rules on the involvement of boosters in recruiting. The guidance was developed by an NIL working group of athletic directors and conference commissioners.

The key takeaways of the guidance are the following:

1. The NCAA clarified its definition of "booster" to include collectives.

2. Boosters are not permitted to engage in the recruiting process for prospective student‑athletes, which includes high school athletes and college athletes in the transfer portal.

3. Coaches and institutional staff cannot communicate with prospective student-athletes on behalf of boosters.

4. NIL deals cannot be contingent on initial or continuing enrollment at a school.

5. The NCAA has given its enforcement staff the green light to investigate violations of the NCAA's interim NIL policy and guidance and its existing rules on recruiting, including retroactively. Per the NCAA, it has directed its staff to focus on the "most severe violations," and has emphasized that the investigations are not intended to impact the eligibility of student-athletes.

6. The guidance is subject to state NIL laws, which presumably means that the applicable state NIL law preempts the guidance if there is a conflict.

Overall, the new NIL guidance does not create any new rules, but instead clarifies the NCAA's existing rules that prohibit boosters from recruiting and/or providing benefits to prospective student-athletes. While the NCAA has taken a step in cracking down on booster-led NIL collectives, it remains to be seen whether the NCAA's enforcement staff will enforce the new guidance. In recent months, coaches and administrators have publicly called on the NCAA for increased regulation on NIL as NIL deals have started to blur the line between legitimate commercial deals and improper recruiting inducements or pay-for-play. To this point, the NCAA is all bark, no bite, when enforcing its NIL rules, despite calls from coaches and administrators for more help in enforcing and interpreting such rules.

Ryan Whelpley is an Associate at Morse in Waltham, Massachusetts, where he is a member of the firm’s Corporate Practice Group and focuses on venture capital financings, M&A transactions, and general corporate work for start-up and emerging growth companies. He is a graduate of Albany Law School (2019) and Union College (2016). At Union, Ryan was a member and three-year captain of the Men’s Basketball Team. You can connect with him via Twitter (@Whelpley_Law) and LinkedIn.