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Athletics Veritas is a weekly series aimed at helping higher education executives, faculty, and other stakeholders stay tuned in on trending national issues impacting college athletics, especially NCAA Division I. Athletics Veritas is created by senior DI athletic administrators around the nation.

Division I Board Expresses Concerns Around NIL & Directs Division I Council to Conduct Review; AV Offers Key Questions on NIL Marketplace the Council May Need to Explore

Executive Summary
  • Board’s call for a review prompted by impression some NIL activity not aligning with NCAA recruiting inducement and amateurism rules
  • Based on variability of state laws or lack thereof, some NCAA schools are directly involved in procuring NIL deals for their student-athletes
  • Emergence of NIL “Collectives” often involving boosters endeavoring to drive NIL revenue to student-athletes on radar
  • Board seeking Division I Council to review NIL landscape provide final report by June
  • NCAA membership seeking more clarity on NIL as it relates to where lines are drawn around amateurism, fair market value, and recruiting inducements
  • NIL’s impact on student-athletes’ mental health is increasingly of concern
  • Implementing a centralized NIL activity reporting process was missed opportunity and is enabling current climate
  • AV poses a few NIL-related questions the Council and Board may need to address through this announced review
Since NIL came into being for college student-athletes last July, it took only seven months for the NCAA governance leadership to call for a closer review on whether NIL activities are running afoul of long-standing NCAA rules.

According to an NCAA release last week, the Division I Board of Directors charged the Division I Council with reviewing how name, image and likeness policies have impacted student-athletes, including school choice, transfer opportunities, academics and mental health. The board met virtually Friday.

"We are concerned that some activity in the name, image and likeness space may not only be violating NCAA recruiting rules, particularly those prohibiting booster involvement, but also may be impacting the student-athlete experience negatively in some ways," said board chair Jere Morehead, president at the University of Georgia. "We want to preserve the positive aspects of the new policy while reviewing whether anything can be done to mitigate the negative ones."

The involvement of schools in arranging for deals also was a concern, as well as how to best ensure adequate representation for student-athletes as they negotiate contract terms. The board welcomed congressional action toward a national, reasonable NIL standard that supports college athletes.

Council chair Shane Lyons indicated that the group agreed that the current name, image and likeness climate should be reviewed.

"We look forward to conducting this review and hope to be able to provide the membership with additional clarity," said Lyons, athletics director at West Virginia. "Any recommendations we provide will help members as they support their student-athletes moving forward."
The board acknowledged that national office enforcement staff have continued to investigate violations of NCAA rules, especially pay-for-play and recruiting inducements.

"We expect that all members and their representatives are abiding by current NCAA rules regarding recruiting and pay-for-play, which are in place to support student-athletes," NCAA President Mark Emmert said. "We encourage school compliance staff to continue their diligence, and NCAA enforcement has and will continue to undertake investigations and actions against potential rules violations."

The board asked for a preliminary report by April, with a final report with recommendations for possible action due in June.

As the Council initiates this review, it may look at one of the missed opportunities leading up to NIL going live last summer when the NCAA did not adopt and implement a central NIL activity reporting process for all student-athlete NIL activities across the country.

A central NIL activity reporting process and hub would facilitate standardized reporting for student-athletes that, in step, would also enable reasonable monitoring and enforcement on a national scale around NCAA rules even if state laws and executive orders tied to NIL are not consistent. 

A central NIL activity reporting hub would also foster the collection of data. Collecting comprehensive NIL data would drive beneficial decision-making at the national level through research that could gauge sentiments and impacts on a variety of issues. Data could expound on issues from student-athletes’ financial literacy regarding newfound NIL wealth to the mental health impacts NIL has on student-athletes, including NIL-related criticisms of student-athletes on social media or pressures on student-athletes from family members to generate more NIL income than the amounts coming in thus far.

Data collection could also help develop an initial framework around what constitutes fair-market value around frequently-cited NIL activity categories. Beyond the value of a centralized NIL reporting process, there are bigger NIL questions facing the Division I Council— and the NCAA membership.
Some pressing questions include:
  • Where exactly do legitimate NIL activities end and impermissible pay-for-play begin?
  • If a coach or staff member forecasts to a prospect a possible NIL income range or threshold should they enroll at that NCAA school— is that dialogue the same as a recruiting inducement?
  • Can fair-market-value of NIL activities be discerned in the first year of NIL?
  • Are NIL collectives facilitating excessive booster influence and is that influence leading to pay-for-play being disguised as NIL activities?
  • If the NCAA Board believes NIL is being abused, is there an appetite to increase resources and staffing of NCAA enforcement operations around NIL?
The Council’s review of NIL activities this spring seems congruent to the NCAA Transformation Committee’s charge to develop a set of Division I Commitments, Regulations and Membership Obligations that directly respond to the set of issues that continually challenge the division.  

As the winter and spring 2022 sport seasons move forward, NIL would seem to be one issue that is its own brewing challenge for Division I.
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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.
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