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Division I Commissioners Go to Washington and the Division I Board Reaffirms NCAA Rules Applicable to NIL Activities
Executive Summary
Two of the Power 5 Conference Commissioners met last week with Congressional leaders to discuss advancing a federal NIL solution.
One U.S. Senator publicly calls for structural changes to NCAA and notes NCAA President Mark Emmert’s resignation was one of many “necessary” changes
Concerns include claims that NIL is being used to disguise blatant pay-for-play to student-athletes as well as to impermissibly tamper and induce current student-athletes to transfer based on promises of NIL riches.
Olympic sports long-term viability under duress if football and basketball become a pure pay-for-play, pro-sports model that takes away financial support for broad-based Olympic sports sponsorship.
NCAA national office anticipated to publicly reaffirm as soon as this week the application of existing amateurism and recruiting rules that restrict boosters and booster-led collectives from using NIL as pay-for-play and recruiting inducement measures.
Some College Athletics Leaders Skeptical that Congress will Act Soon, citing upcoming mid-term election cycle.
Per an NCAA report last week, SEC commissioner Greg Sankey and Pac-12 commissioner George Kliavkoff met with United States senators in Washington on Thursday to ask for legislative help surrounding name, image and likeness policies.
"The Pac-12 greatly appreciates the opportunity to engage in productive conversations with U.S. senators in an effort to create NIL legislation that protects our student-athletes while allowing them to maximize their opportunities," Kliavkoff said in a statement after the meeting.
NCAA president Mark Emmert and other leaders in college athletics have been asking for federal lawmakers to step in and regulate NIL policies. There are currently no federal regulations around NIL and state laws vary considerably.
Kliavkoff contacted Democratic Washington Sen. Maria Cantwell, whom he knows from their time working together at RealNetworks. He and Sankey met to discuss the need for the legislation with Cantwell and Republican Tennessee Sen. Marsha Blackburn, as well as other senators from both parties.
"For far too long, the NCAA has refused to allow student-athletes to benefit from the use of their name, image, likeness [NIL]," Blackburn said in a statement issued after the Thursday meeting. "NCAA president Mark Emmert's resignation is one of many necessary structural changes that will enable the NCAA to support our student-athletes. ... I continued to push for the accountability and fairness measures our student-athletes deserve."
Sankey also issued a statement Thursday expressing his thanks for the "opportunity for conversation and dialogue with members of Congress."
It continued: "As we have observed activity emerge that is very different from original ideas around Name, Image and Likeness, it is important we continue to pursue a national NIL structure to support the thousands of opportunities made available for young people through intercollegiate athletics programs across the country.''
The two commissioners were joined by Olympic Committee CEO Sarah Hirshland. Part of the pitch to lawmakers for giving college sports some antitrust protection is that moving to a more professional model for revenue-generating sports such as football and men's basketball would lead to fewer collegiate opportunities for Olympic-sport athletes.
Cantwell took to Twitter to welcome all parties coming together to discuss the hot-button NIL issue.
Kliavkoff on Wednesday said the goal of the meeting was to discuss issues facing college athletics with "influential" senators. He followed that up Thursday, saying "we had the opportunity to discuss the very serious negative implications for student-athletes should they be classified as employees."
"I think it's more likely that we eventually get federal legislation on name, image and likeness, but we're also interested in discussing all of the harm that will come to student-athletes if they are deemed to be employees," he said Wednesday.
Big 12 commissioner Bob Bowlsby, while supportive of the meeting, expressed doubt that anything will come of it in the short term.
"Getting anything done before the midterm elections is going to be next to impossible," Bowlsby told ESPN's Adam Rittenberg on Thursday. "It's great that they are going to do it. Whether anything comes of it ... we've had relationships with the same people they're talking to for a while, so we'll see what comes of it. ... I wouldn't put too much significance on it."
The meetings came on the heels of Pac-12 spring meetings, during which athletic directors and coaches sought solutions to better control the NIL landscape.
Kliavkoff told ESPN it's imperative to enforce rules prohibiting the use of NIL as a recruiting inducement or pay-for-play.
"Either the NCAA is going to get its act together in enforcing this," he said Wednesday, "or I'm going to be pushing for a smaller group to figure out how to create and enforce the NIL rules that we all agree on related to inducement and pay-for-play. The amount of an NIL payment should be commensurate with the work done as a backstop to make sure we're not using it related to inducement and pay-for-play."
According to a recent Sports Illustrated article, college leaders are set to finalize additional guidelines expected to clarify that boosters and booster-led collectives are not allowed to use NIL opportunities for recruiting purposes.
“The guidelines will provide more guidance to member schools on what many administrators say are NIL-disguised “pay for play” deals orchestrated by donors to induce prospects, recruit players off other college teams and retain their own athletes,” Sports Illustrated reported.
“The new directives will highlight existing NCAA bylaws that outlaw boosters from participating in recruiting, reminding member schools of guardrails that, while in place for years, have been bent and broken during the first 10 months of the NIL era, officials say.”
Per an NCAA press release issued yesterday and reported by ESPN, the NCAA's Division I Board of Directors published new guidelines to clarify that boosters— including recently created companies designed to provide athletes at a particular school with endorsement deals— should not have any contact with prospective college athletes, their family members or their representatives.
The guidelines were crafted by a working group of athletic directors and conference commissioners who were tasked earlier this year with reviewing the evolving marketplace for college athletes. The NCAA updated its rules last summer to allow college athletes to make money by selling the rights to their name, image and likeness. The group's first public response comes amid growing concern that some boosters and NIL-focused companies, known as collectives, are offering money as incentives to attend a particular school.
The guidance reaffirmed that boosters or collectives who contact recruits or sign athletes to contracts that are contingent upon a player's attendance at a particular school are breaking NCAA rules. The Division I Board of Directors said the NCAA could pursue sanctions against anyone who has egregiously violated these rules in the past 10 months since NIL rules were changed, but it is likely to focus more on issues that come up in the future.
"While the NCAA may pursue the most outrageous violations that were clearly contrary to the interim policy adopted last summer, our focus is on the future," board chair and University of Georgia president Jere Morehead said. "The new guidance establishes a common set of expectations for the Division I institutions moving forward, and the board expects all Division I institutions to follow our recruiting rules and operate within these reasonable expectations."
The guidelines don't establish any new rules, but are an attempt to clarify the definition of a booster. Coaches and administrators have publicly called for more help in recent weeks from the NCAA in enforcing and interpreting rules that shape the elastic and increasingly murky line between college athletes making money from endorsement deals and professionals getting paid to play sports.
NCAA rules prohibit athletes from taking money as a recruiting inducement or as a reward for their athletic performance. However, the broadly written rules have made it difficult for the NCAA to separate deals made by private businesses for an athlete's services off the field from deals made with the intent of securing an athlete's services on the field.
An entire industry has emerged in that gray area. Dozens of businesses known as collectives have opened their doors since last July. Most of the collectives have slightly different approaches to how they do business, but generally they seek to collect money from boosters or fans and then find ways to channel it to athletes at their chosen school through NIL deals.
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.
