Has College Athletics Entered the Month of JuNILy?
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NIL Policy Decisions Reaching a Fever Pitch: Has College Athletics Entered the Month of JuNILy?
Executive Summary
With the Supreme Court’s ruling on the NCAA vs. Alston case and the looming July 1 activation of name, image and likeness (NIL) laws in several states, the college athletics model in the United States is about to undergo significant changes.
Six states — Alabama, Florida, Georgia, Mississippi, New Mexico and Texas — passed laws that go into effect July 1 and allow college athletes to monetize their NIL through advertisements, sponsorships, autographs and more. Another 18 states passed similar laws with future activation dates, with five of them awaiting their governor’s signature.
Kentucky Gov. Andy Beshear this past Thursday became the first governor to sign an executive order with the same effect.
The unanimous Supreme Court ruling struck down the NCAA’s ban on education-related benefits, such as post-graduate internships, free laptops or other similar assistance, for collegiate student-athletes. The language in the concurring opinion, penned by Justice Brett Kavanaugh, foreshadowed the bigger fight on name, image and likeness benefits and the NCAA’s amateurism model. “The NCAA,” Kavanaugh wrote, citing antitrust laws, “is not above the law.”
To avoid antitrust lawsuits that could arise with no NCAA action — and in an attempt to avoid any further chaos and bad optics around July 1 — the NCAA is reportedly considering a temporary solution that Sports Illustrateddescribed as a move to “mostly exempt itself” from NIL. NCAA leadership hoped Congress would take action on the subject to give uniformity and national policy backing to NIL rules, but a congressional committee is still considering its options.
SI’s report summarized the thinking behind the NCAA’s move: “Schools in states with an NIL law may follow that law without penalty, and schools located in states without a statute are granted permission to each create and administer their own NIL policy," provided they follow certain stipulations in adherence with NCAA pay-for-play and recruiting rules.
The NCAA’s new approach has some administrators in states without upcoming NIL laws concerned about schools piecing together their own NIL rules in such a short time.
An NIL-focused work group originally put out a well-documented 30-page policy plan introduced in January, but the NCAA is now reportedly considering a looser, more athlete-friendly alternative proposal put forward by six conference commissioners, including the SEC’s Greg Sankey, ACC’s Jim Phillips and Pac-12’s Larry Scott.
Name, image and likeness (NIL) benefits for collegiate student-athletes always felt inevitable. Time served as the primary variable. The concurring events of the past few months all led to this week, a seismic few days in the history of college athletics.
By week’s end, half of the 50 states in this country will have enacted or have plans to enact laws that allow student-athletes to receive benefits, financial or otherwise, for their personal brands. This comes in addition to the Supreme Court’s unanimous ruling against the NCAA in the NCAA vs. Alston case, which specifically argued whether student-athletes could receive education-related benefits such as free laptops or graduate school scholarships.
The onus this week is on the NCAA and its membership to determine how to proceed. Schools in states with NIL laws will follow them. What schools in states without NIL laws do will offer a rough first draft of what’s to come in the ongoing work toward some semblance of uniformity in college sports — at least until, or if, Congress acts.
The latest: With state laws going into effect on Thursday, the NCAA’s time to act is limited. The organization and its members are reportedly working to push the conference commissioners’ alternative NIL policy proposal across the finish line in time for schools in states without NIL laws or executive actions. The plan is intended to serve as a “bridge” to the eventual congressional action, CBS Sports reported. U.S. Sen. Maria Cantwell (D-WA), who is leading committee efforts to take up NIL legislation, indicated to reporters in recent weeks that no bill is imminent.
The concern with the NCAA’s temporary action is that it leaves member universities to their own devices to create NIL policy, a worrying prospect for some administrators and compliance officers who fear a free-for-all with little to no guidance. SIreported the NCAA’s language encouraging such schools to create their own plans included the stipulation that they “use guiding principles, such as prohibiting NIL ventures designed as pay-for-play or recruiting inducements.” That, for example, might include performance-based bonuses from boosters or monetary or other benefits in exchange for signing with a university.
The temporary proposal, as critics note, creates serious potential for differing NIL approaches among the NCAA’s members, making any policing of the rules that much more difficult. Schools also fret about the possibility of creating rules that are too restrictive compared to rivals — or rules that could lead to lawsuits from their own student-athletes.
“The move is strategic by the NCAA,” CBS Sports reported last week. “The idea is that the association will avoid enacting new rules that might be subject to lawsuits. For the moment, it would temporarily resolve the NCAA's role in legislating what are basically going to be nearly unregulated NIL benefits.”
None of these proposals have unanimous support within the NCAA membership, adding to the complications of the week (and months and years) ahead.
Leaders of the Division I Student-Athlete Advisory Committee (SAAC) toldSI they opposed the temporary plan, calling it an unwelcome stopgap to a situation that needs firmer positioning from NCAA leadership.
“We understand the NCAA is trying to divert and give member schools the power to create their own guidelines, but uniformity would be the best possible situation,” said former Rutgers football player Ryan Cassidy, the national chair of SAAC. “By July 1, we are going to need to implement a standard of what NIL looks like. Right now it’s not about temporarily fixing this problem.”
What’s next: Policies are only the first step in this massive undertaking. Schools and organizations, both conferences or the NCAA, have to then start implementing their plans and work through how to regulate them, all while educating their coaches, student-athletes and staffers.
There are roughly 176,000 Division I student-athletes, NCSA Sports estimates, with thousands and thousands more competing at the Division II and III levels. While a small handful might attract the kind of mega-dollars most think of when discussing college athletes monetizing their name, image and likeness, the wide swath of student-athletes may be working with a smaller level of benefits.
Regardless of their earning potential, student-athletes could have great learning opportunities that can prepare them for life after athletics.
Many schools already hired outside consulting firms or began in-house programs to educate student-athletes on matters related to NIL, namely branding and marketing themselves; holding business conversations and meetings; preparing taxes; and other similar topics.
The Athletic chronicled the recent efforts of several companies to prepare themselves for the creation of NIL benefits for student-athletes, from T-shirt vendors memorializing big moments with specially-designed shirts to pizza shops selling athlete-driven specials.
The possibilities are seemingly endless.
Much of what’s coming, however, can best be summed up by Jim Curry, Florida State’s senior associate athletics director, who told Sportico that “we’re all going to learn this together.”
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.
