The name, image and likeness market has been the hottest topic in college sports for more than 18 months. Prominent college coaches have likened the NIL era to the wild, wild west. Administrators have alternated complaining about and collaborating with their fan bases’ booster-backed collectives. Much of the frustration stems from the lack of clearly defined rules from the NCAA, and the lack of repercussions for those who appear to break the rules that do exist.
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That may finally change, thanks to a new bylaw adopted by the NCAA in October that went into effect on Jan. 1.
Bylaw 19.7.3 states that “In cases involving name, image and likeness offers, agreements and/or activities in which related communications and conduct are subject to NCAA regulation, the infractions process shall presume a violation occurred if circumstantial information suggests that one or more parties engaged in impermissible conduct. The enforcement staff may make a formal allegation based on the presumption. The hearing panel shall conclude a violation occurred unless the institution or involved individual clearly demonstrates with credible and sufficient information that all communications and conduct surrounding the name, image and likeness activity complied with NCAA legislation.”
“The NIL presumption,” as it has been colloquially called, means that the NCAA’s enforcement staff will presume a violation occurred when it receives information on the activity that is deemed actionable, such as a tip or a news story. The burden of proof will then fall on the implicated school to get to the bottom of the situation and prove that no violation occurred. The Division I Board of Directors announced the change on Oct. 26, alongside updated NIL guidance for member schools. Both changes originated in an NIL subcommittee formed early last year by the D-I Council and made up of athletic directors and other campus leaders, acting on the desire from member schools that the NCAA crack down on this issue. But throughout the fall, the bylaw change flew under the radar even among the most legislatively plugged-in administrators. Now that the bylaw has taken effect, it has become a more popular topic.
The NCAA has opened NIL-related investigations into a number of schools. Some are ongoing, and some have been resolved without penalties being levied. The NCAA’s interim NIL policy forbids pay-for-play and recruiting inducements, but no school has been punished yet for violating those parts of the policy. Some administrators believe that the brazen behavior publicly attributed to certain donors and/or collectives won’t change until a school is hit with significant consequences.
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Wonky bylaw language aside, the NCAA’s attempts to more actively manage NIL and enforce its rules could become a central storyline of the 2023 offseason and beyond. Jon Duncan, the NCAA’s vice president of enforcement, explained in a Q&A with The Athletic what has changed.
So, what happened Jan. 1, 2023?
Several reforms became effective on Jan. 1 in Division I, and I would suggest that they are transformational. The infractions process committee proposed, and the Board supported, really significant changes to Article 19, which is how potential infractions are investigated, charged, adjudicated and finally resolved on appeal. Every stage of the infractions process was subjected to significant reform, and all of those legislative changes became effective Jan. 1. In addition to those changes, through a separate governance process, the NIL presumption also became effective, which changes the standard by which we bring allegations in NIL cases and what we call NIL-adjacent cases — which is the communications and the contacts around the NIL deal.
The changes really are significant.
So, when you say NIL presumption, it’s a presumption that a violation occurred and then the school has to show proof that it didn’t, that they’re following the rules. Is that a fair way to describe that?
That’s correct, yes.
What does that look like in practice? What’s the starting point for the presumption of a violation?
If circumstantial evidence suggests that a violation may have occurred, then the enforcement staff — everybody in the infractions process — can presume that the violation occurred, and then the responsibility would be on the school or the coach to show that it didn’t. … There were instances in the past where there were transactions, some of them reported publicly, that seemed like they were impermissible yet for whatever reason, the infractions process couldn’t substantiate the violation. This was designed to address that, to put the burden on the school to show that what everyone believed to be a violation wasn’t. If they can, great. If not, then we’ll need to talk about it through the infractions process.
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I don’t want to ask if this change makes your job easier because I don’t want to imply that your job is easy. But is it easier to start from that presumption and that standpoint in cases that are complicated or maybe where people don’t want to be cooperative?
Nobody would ever use enforcement and easy in the same sentence. (Laughs) I do think it relieves us of the obligation to have a smoking gun in every case, to have some witness on the record say exactly what happened and why, or a damning text message or video — which occasionally you get, but not very often you get. I still would not say that this is going to be easy or even easier by degree. But I do think that it will allow the enforcement staff to bring to light behaviors that are of concern to the membership more readily than we could before.
I have already heard someone posit that a fan could put a rumor on a message board, and the NCAA will assume it’s a violation. Like, someone could plant purposely false information. But when I see, in the bylaw, that it’s circumstantial evidence that could come from a news story, I think that must mean a booster talking about signing a deal with a recruit on the record, or something like that.
I wouldn’t say it’s limited to media stories or social media. We have information coming in from lots and lots of different sources. But we also know that sources have their own agendas. We’ve always got to ask why it is that somebody would put something on a message board. We know that there are folks out there who want to use the infractions process to advance their own agendas, and we work really hard to be discerning consumers of information and know that sources may have their own reasons for sharing information. We don’t want to fall prey to that. We don’t want to be a pawn in somebody else’s scheme. We work really hard to test information that comes in. We’re common-sense people.
The membership, I think, wants the NCAA office generally and enforcement specifically to be reasonable and exercise our common sense. We do and we will, when we invoke the presumption and then when a school responds, we’ll assign value to what they share. We’re not so cynical that we think everybody’s lying to us, but we’re also not so naive that we believe everything that every booster puts on a message board.
How much pressure or how much of an opportunity — depending on how you look at it — is there for the enforcement staff right now? To really make an impact in the NIL space?
We feel significant pressure and see a significant opportunity to protect compliant programs, which is our mission. There is pressure and not unfair pressure; we know it’s coming because we know there are violators out there. We know there are behaviors happening that are inconsistent with the rules. We know that there are compliant programs being disadvantaged by their commitment to compliance. There’s not pressure coming in the form of anger from members directed us or threats. It’s pressure that we know we’ve got work to do. But we also see an opportunity to show the membership and to show the public that enforcement staff is working around the clock — because we are — to get to the bottom of these cases, to get to the truth of what happened.
It’s also an opportunity to remind the membership and the public that while we’re working around the clock, we still need help from members who have personal information and from individuals who’ve got details that would be helpful to us. We can do everything we can and use all the tools we’ve got, but in the end, we still need cooperation from schools who are the subject of the investigation to deal with us in good faith. We need schools and programs and coaches and student-athletes who are on the wrong side of a violation to cooperate with us as well. … We’re all in this together, and we need to work together to protect compliant programs and to protect the games.
(Photo: Greg Fiume / NCAA Photos via Getty Images)
