Justice Department drops warning letter to NCAA in days preceding key votes on NIL and one-time transfer
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Reactions to the NCAA’s Delay in Voting on NIL and One-Time Transfer Proposals
Justice Department drops warning letter to NCAA in days preceding key votes on NIL and one-time transfer
In response to Justice Department letter, all NCAA Divisions table the slate of NIL proposals
Division I Council also tables its vote on the one-time transfer proposal
NCAA President notes NCAA was on the cusp of voting changes only to pause at the behest of the government
NCAA Board of Governors chair states membership needs to conduct “appropriate due diligence” to ensure best possible experience around the proposals before voting
NCAA Student-Athlete Committees disappointed in the delayed votes
Congressional leaders criticize NCAA for delaying the votes
In the days immediately preceding last week’s anticipated vote on key NCAA proposals, the Justice Department’s Antitrust Department sent a letter to NCAA President Mark Emmert expressing, as USA Today reported, “strong concerns” about the direction the NCAA is taking its policies with regards to student-athlete name, image, and likeness (NIL) rights and transfer policies.
As NCAA President Mark Emmert noted in a New York Times article, the Justice Department’s move was a “massive monkey wrench” that eviscerated months of careful planning. “We were right on the cusp of making some really, really important changes to provide some much-needed flexibility and, all of a sudden, now we’ve got to pause,” said Emmert, who nevertheless vowed that the NCAA would ultimately change its rules. “We just have to use whatever time it takes to sort this out” with the government, he said.
The NCAA Board of Governors, the association’s top governing body, met virtually last Wednesday as part of the 2021 NCAA Convention and reaffirmed its commitment to providing NIL opportunities to all college athletes at the first viable opportunity.
In response to the Justice Department’s letter and citing recent judicial, political and governmental enforcement events, the Board of Governors supported postponing anticipated votes in all three divisions until the NCAA can gather additional relevant information. The board last year directed the divisions to adopt new NIL rules to further support student-athletes.
“While any postponement certainly is disappointing, we support conducting the appropriate due diligence to ensure we are effectively modernizing rules to ensure the best possible experience for our students engaged in intercollegiate athletics,” said John J. DeGioia, board chair and president of Georgetown. “We stand committed to allowing all students engaged in athletics the opportunity to benefit from the use of their name, image and likeness in a manner consistent with the collegiate model. The board encourages the divisions to consider the impact of these external forces and continue their thoughtful work. We must improve name, image and likeness opportunities as quickly as possible, given the circumstances.”
A resolution approved unanimously by the board stated, in part, that while the “NCAA believes its legislative proposals are fully compliant with U.S. antitrust laws, taking time to better understand the landscape and specific concerns of regulators would be prudent prior to moving forward with voting on legislative proposals.”
NCAA governance leaders were not the only ones commenting about the delayed vote. Last week, the Division I, II and III Student-Athlete Advisory Committees and the Board of Governors Student-Athlete Engagement Committee issued a joint statement regarding the pause in the process of voting on name, image and likeness legislation:
"On behalf of the National Student-Athlete Advisory Committees of Divisions I, II, III, and the Board of Governors Student-Athlete Engagement Committee, we would like to express our disappointment in the need to delay the 2021 NCAA Convention vote on Name, Image, and Likeness (NIL). Although we recognize the United States Department of Justice’s concerns about our NIL proposals, we are confident that the recommendations developed within each division align with NCAA student-athletes’ best interests. The work to be done with NIL is far from over, as this is only a pause in the process. There also is a need to further the federal, state, and local understanding of the intricacies of each divisional structure within the NCAA. We are committed to ensuring any legislation changes are in the best interest of every student-athlete in each division and dedicated to seeing this passed as soon as possible. We encourage you, our fellow student-athletes, to use this time to continue to work with your SAAC representatives, and within your campuses and communities to serve as advocates for the modernization of college athletics."
Outside the NCAA membership and governance circles, other stakeholders took note of the delayed vote, including congressional leaders who criticized the decision.
U.S. Senators Cory Booker (D-NJ) and Richard Blumenthal (D-CT), who in December introduced the College Athletes Bill of Rights to guarantee fair and equitable compensation, enforceable health and safety standards, and improved educational opportunities for all college athletes, released the following statement:
“Fair compensation delayed is fair compensation denied. Yet again, the NCAA has missed an opportunity to finally do right by college athletes. The NCAA’s delay reinforces the need for Congress and individual states to move forward with legislative remedies that will provide college athletes with rights that the NCAA continues to neglect. NCAA’s disappointing decision further fuels our commitment to passing a strong College Athletes Bill of Rights that will truly advance justice and opportunity for college athletes.”
Procedurally speaking, delayed votes of NCAA proposals at January governance meetings would often be revisited at the standing April meetings; however, the urgency and scrutiny encircling the NIL and transfer proposals may prompt the NCAA governance leaders to move quickly to communicate with government and congressional leaders to address their concerns, amend the proposals where necessary, and move forward with voting on these proposals at the earliest opportunity, including before April. Time will tell on when the votes will actually occur and how much consensus can be built around any revised proposals.
As the national NIL conversation continues to simmer, next week’s AV will feature Part II of the NIL Q&A with the CCHA Collegiate Sports Law Practice.
Athletics Veritas is presented for information purposes only and should not be considered advice or counsel on NCAA compliance matters. For guidance on NCAA rules and processes, always consult your university’s athletics compliance office, conference office, and/or the NCAA.
