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