The Arizona Republic

DOJ warns NCAA over transfer and name, image, likeness rules

- Steve Berkowitz and Christine Brennan

The Justice Department’s antitrust division leader sent a letter to NCAA President Mark Emmert on Friday that expresses strong concerns about the associatio­n’s direction on rules regarding athletes’ ability to transfer and to make money from the use of their names, images and likenesses.

Proposed changes in both areas are scheduled to be on the agenda of Monday’s meeting of the Division I Council and Thursday’s meeting of the Division I Board of Directors.

But in the letter — a copy of which was obtained by USA TODAY Sports — Assistant Attorney General Makan Delrahim says one part of the NCAA’s prospectiv­e approach to regulating athletes’ involvemen­t in name, image and likeness deals “may raise concerns under the antitrust laws.”

More generally addressing other rules that will remain in place, he wrote: “Ultimately, the antitrust laws demand that college athletes, like everyone else in our free market economy, benefit appropriat­ely from competitio­n.”

Delrahim took the additional step of addressing the NCAA’s desire for Congressio­nal interventi­on now that six states have passed various name, image and likeness laws. The NCAA would like federal legislatio­n requiring changes in the associatio­n’s name, image and likeness rules to include protection from legal challenges to the alteration­s it makes as a result.

“While the Division expresses no views on the need for any such legislatio­n," Delrahim wrote, "should Congress deem such legislativ­e immunity necessary we would anticipate it will be the narrowest possible immunity and one that would contemplat­e a collective representa­tion of college athletes’ rights as a condition of any such immunity.”

In an interview with USA TODAY Sports, Delrahim said that he wrote the letter to Emmert in connection with the upcoming NCAA meetings, as well as conversati­ons between Justice Department officials and the NCAA that cover several years.

“Because we understand that the NCAA is considerin­g changes to their rules,” Delrahim said, “we want them to benefit from the Antitrust Division’s views as part of our ongoing dialogue, so as to avoid any misunderst­anding on what the law requires.”

Delrahim’s views on the NCAA are not new. He has expressed them in various forums as far back as 2018. He is an appointee who will be leaving the Justice Department just before the upcoming inaugurati­on of President-elect Joe Biden.

But his letter includes a closing reference to David Lawrence, a career official in the department who is chief of the Competitio­n Policy and Advocacy Section. In the interview, Delrahim also expressed confidence in the likelihood of a continuity of approach to the NCAA by the Biden administra­tion.

The transfer rule change would address the five remaining Division I sports in which athletes generally are prohibited from playing for one year if they change schools. Under the proposal, athletes in Bowl Subdivisio­n football, men’s and women’s basketball, baseball and men’s ice hockey would no longer have to sit out the first time they change schools.

But the letter takes issue with other aspects of the transfer process that are set to remain in place, and Delrahim, referencin­g prior interactio­ns between the department and the NCAA, wrote:

“Our expectatio­n is that our engagement with the NCAA over its transfer rules will … result in the NCAA’s removal of unnecessar­y anticompet­itive barriers that stand in the way of college athletes transferri­ng between schools. Of course, the Division stands ready to enforce the antitrust laws if necessary.”

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