NCAA clarifies compensation rules but is crackdown likely?
Eleven months after the NCAA lifted most
of its restrictions against athletes cashing in on their fame, college sports leaders are trying to send a warning to schools
and boosters it believes have crossed a line: There are still
rules here and they will be enforced.but following last year’s
Supreme Court ruling against the NCAA in an antitrust case, is a crackdown on socalled collectives brokering name, image
and likeness deals still likely — or even
possible?“i didn’t think (the NCAA) would not try at some point,” said Maddie
Salamone, a sports attorney and former Duke lacrosse player. “That’s why many attorneys have been kind of giving cautious advice in terms
of what is and is not
allowed. Especially when it comes to collectives and different NIL deals.”
The NCAA’S Division I Board of Directors on Monday approved guidance developed by a group of college sports administrators, clarifying the types of NIL payments and booster involvement that
should be considered recruiting violations.
“Specifically, the guidance defines as a
booster any third-party entity that promotes an athletics program, assists with recruiting or assists with providing benefits to recruits, enrolled student-athletes or their family members,” the NCAA release said. “The definition could include ‘collectives’ set up to funnel name, image
and likeness deals to prospective studentathletes or enrolled
student-athletes who might be considering transferring.”
The NCAA added a reminder: Recruiting rules bar boosters from recruiting or providing benefits to prospects.
The guidance is effective immediately. NCAA enforcement
staff was directed to look for possible violations that might have
occurred before May 9, 2022, but “pursue only those actions that
clearly are contrary to the published interim policy, including the most severe violations of recruiting rules or payment for athletics performance.”
The NCAA neither changed its rules nor created new ones.
“I don’t think they’re even necessarily clarifying the rules,” said attorney Darren Heitner, who helped craft Florida’s NIL law. “My
understanding is this
is just certain individuals who have made up a working committee deciding that after
almost 11 months we want to enforce our rules.”
The rise of boosterfunded collectives prompted the board
in February to ask the DI Council to review the NCAA’S interim NIL policy. The concern among many in college
sports has been that payments from collectives are being made to high school recruits and to college athletes in hopes of getting them to transfer to a particular school.
“Some things look very much like payfor-play,” Salamone
said. “There are rules on the books within the NCAA around
boosters. The fact that the NCAA has been
hesitant to enforce anything I think has
emboldened a lot of people around this issue to be a little bit more obvious.”
Last year, the NCAA removed its longstanding ban against athletes earning money from sponsorship and endorsements deals. What remained
in place, however, were three pillars of the NCAA’S amateur athlete model:
— Athletes could not be paid solely for playing their sport;
— Compensation could not be used to lure an athlete to a
particular school;
— Financial arrangements must have some type quid pro quo
agreement in which the athlete was being
paid for services provided, like a social
media post or appearance.
The NCAA did not ban boosters from being involved in NIL activity. However, without detailed NCAA rules and with
state-level NIL laws differing across the country, it left both
schools and the association struggling to determine what activities were impermissible.
Some state laws also prohibit boosters from
engaging with recruits, but there has been little appetite for
enforcement of those laws.
Should the NCAA start targeting some collectives it could trigger a new round of lawsuits against the association.
Mit Winter, a sports attorney in Kansas City, Missouri, said NCAA enforcement of these rules is not a
clear-cut antitrust violation.
“So the question is, under antitrust law, is the rule that’s being
enforced reasonable?” Winter said. “And from my reading of
everything, the rule that they’re going to
be enforcing is the rule that says boosters
and other third parties like collectives
cannot pay athletes in return for a commitment to a school.”
Heitner advises several collectives and businesses that have made NIL deals with college athletes. He
said he has stressed to clients from the start to wait until athletes
are at the school of their choice before getting involved.
“I don’t think it’s a collective issue,” he added. “I think it’s
just a matter of the NCAA saying, ‘Hey, we’ve always been of the position that boosters cannot influence decision making of athletes, particularly high school athletes who have not yet enrolled at universities.’”
Gabe Feldman, the director of sports law
at Tulane, said the NCAA would be best
served being forwardlooking with its NIL enforcement.
“I think that probably is a safer and probably more fair approach,” Feldman
said. “Hindsight is 20/20, but what might have been an even
better approach is to have come up with clear rules earlier and
started enforcing those so we didn’t get to a situation where it might be unfair to
start enforcing the rules.”
College sports conferences and the NCAA have been frequent targets for lawsuits, and last June’s
Supreme Court ruling left the door open for even more.