November 7, 2023, may become a monumental day in the history of the National Collegiate Athletic Association (NCAA). It is the first day of a potentially groundbreaking hearing. Region 21 of the National Labor Relations Board will be hearing a case brought by members of the football, men’s basketball, and women’s basketball teams against the University of Southern California (USC), the PAC-12, and the NCAA. The crux of their argument is that the three major entities should be considered “joint employers” who have systematically misclassified the players as “student-athletes” rather than as employees.

The implications of this Board hearing could have far-reaching implications across the country. The NLRB General Counsel Jennifer Abruzzo has already signaled that, in her opinion, certain players at colleges and universities should qualify as employees of their institutions. If the administrative law judge were to agree with Abruzzo’s opinion, the impact on the national landscape of collegiate athletics would be immediate.

If these players are found to be employees, each player would be entitled to the benefits of traditionally employed individuals, such as compensation, overtime, social security, worker’s compensation, health and safety protections, protections against discrimination and harassment, and a statutory right to unionize and collectively bargain for a share of collegiate sport revenues.

While being found to be employees would be looked at as a major win for the impacted players, such a determination would cause complicated issues for colleges and universities across the country. These issues include compliance with Title IX of the Education Amendments of 1972 and the Immigration Nationality Act, among others. Further, having some teams but not others qualify likely will create a two-tier system throughout the country. This divide would be even further enhanced if the Board finds certain players, but not others, qualify as employees.

Testimony will not be heard until the week of December 18, at the earliest. Higher education institutions, players, and fans alike will be monitoring this hearing as it progresses.

Jackson Lewis’ Collegiate and Professional Industry Group is available to assist universities, conferences, or other stakeholders in dealing with matters before the Board or otherwise involving the appropriate classification of student-athletes.

An uncommon combination of three U.S. Senators, Sens. Richard Blumenthal (D-Conn), Jerry Moran (R-Kan.) and Cory Booker (D-NJ), collaborated to draft “The College Athletes Protection & Compensation Act” (the Act), which is the newest legislative proposal in the evolving name, image and likeness (NIL) area of college athletics.

Several other federal NIL legislation proposals have already been put forward (e.g., Tuberville and Manchin Federal NIL Proposal) and various states have also passed conflicting NIL laws (e.g., New York’s NIL Law). As a result, Senators Blumenthal, Moran and Booker are undertaking the responsibility of providing clarity and consistent NIL standards with the draft Act which comes at an important time before federal lawmakers leave for their summer break. 

Establishment of the College Athletics Corporation

Significantly, the Act includes the creation of the College Athletics Corporation (CAC), which would:

  • Establish best practices, rules and investigatory processes and bring actions to enforce the Act;
  • Enforce standards for reviewing and certifying endorsement contracts entered by college athletes;
  • Establish formal certification processes for athletic representatives;
  • Provide recommendations to higher education institutions on how to protect college athletes from unscrupulous athletic representation;
  • Investigate disputes with respect to agency and endorsement contracts and provide college athletes with swift processes for resolving these disputes; and
  • Ensure higher education institutions and covered athletic organizations comply with agency and endorsement contract rules set forth by the CAC.

CAC’s Board of Directors would consist of 15 voting members. Out of these 15 voting members, at least one-third must be current or former college athletes, and at least 20 percent must be actively engaged in college athletic events or engaged in college athletic events during the 10 years preceding the appointment to the Board of Directors.

Additionally, the Act would grant the CAC subpoena power. States that bring actions on behalf of their residents to enforce compliance with the Act would also be required to provide written notice to CAC prior to filing an action and provide a copy of the legal complaint. After receiving written notice, the CAC would have the power to intervene in these actions and the ability to remove such actions from state court to the relevant federal district court.

Protections for College Athletes

The Act would require various protections for college athletes, including:

  • Higher education institutions must provide college athletes with a list of rules governing endorsement contracts;
  • Within seven days of entering into an endorsement contract, college athletes must provide a copy to their higher education institution;
  • College athletes cannot be punished for entering into a professional sports draft if they do not receive compensation from relevant professional organizations and declare within seven days after entering into a professional draft their intent to resume participation in college athletic competition;
  • Athletic associations must not discriminate on the basis of sex and provide non-discriminatory access to athletic facilities; and
  • Higher education institutions must disclose information to college athletes involving grant-in-aid; provided medical coverage; whether disability insurance is provided; revenues and expenditures; average hours spent in college athletic competition; college athletic compensation by athletic program; and academic outcomes, majors and endorsement value statistics for college athletes by program, race, ethnicity and gender.

Medical Expenses and Trust Fund

The Act also specifies requirements for higher education institutions regarding medical benefits to current and former college athletes. For medical care, higher education institutions with at least $20 million in athletic revenue would be required to cover student-athlete medical expenses for at least two years after their final competition, and those with at least $50 million would be required to cover expenses for at least four years after the final competition. Further, the Act would create a medical trust to cover long-term injuries not supported by higher education institutions requiring institutions with revenues of at least $50 million to contribute annually to the fund.

Impact

The Act seems to be one step closer to the federal government implementing a standardized NIL law, which is supported by the NCAA. It could also lead to a legal battle with any conflicting state laws.  Higher education institutions should continue monitoring both federal and state legislation as the NIL environment evolves.The Jackson Lewis Collegiate and Professional Sports Industry group is well-versed in NCAA issues and continues to analyze ongoing developments in the area. Please contact a Jackson Lewis attorney with any questions regarding NCAA and any other collegiate and professional sports developments.

The NCAA has announced a new set of guidelines designed to address the evolution of legalized sports gambling while protecting the sanctity of college sports and athletes.

“The new NCAA guidelines … recogniz[e] that college athletes may stumble and make mistakes along the way, but they should be granted the opportunity to learn and grow from their experiences.”

The rise of sports wagering has prompted the need for effective regulation to ensure fairness and integrity amongst athletic institutions at professional and collegiate levels. Additionally, there has been a growing concern over the increasing number of young adults engaging in sports wagering nationwide. A recent survey conducted by the NCAA found that 67% of college students living on campus have engaged in at least one sports betting activity. A recent survey conducted by the NCAA found that 67% of college students living on campus have engaged in at least one sports betting activity.

The new NCAA guidelines focus on enforcing stringent policies and preserving the integrity of competition in college sports while recognizing that college athletes may stumble and make mistakes along the way, but they should be granted the opportunity to learn and grow from their experiences.

Applying to all wagering-related violations reported on or after May 2, 2023, the new rules enforce a potential permanent loss of collegiate eligibility for those college athletes who engage in various prohibited activities such as engaging in activities to influence game outcomes, betting on their own games, betting on other sports within their school, or knowingly providing information with individuals engaged in sports betting. The guidelines also provide:

  • If a student-athlete wagers on their own sport at another school, education on sports wagering rules and prevention will be required as a condition of reinstatement, and the loss of 50% of one season of eligibility will be considered.
  • For all other wagering-related violations (e.g., wagering on professional sports), cumulative dollar value of the wagers will be taken into consideration with the following terms for reinstatement:
    • $200 or less: sports wagering rules and prevention education.
    • $201-$500: loss of 10% of a season of eligibility, plus rules and prevention education.
    • $501-$800: loss of 20% of a season of eligibility, plus rules and prevention education.
    • Greater than $800: loss of 30% of a season of eligibility, plus rules and prevention education.

Moreover, NCAA reinstatement staff are instructed to consider whether additional loss of eligibility, including permanent ineligibility, is necessary for cumulative wagering activities that significantly exceed $800.

Prior to the legalization of sports wagering, reinstatement guidelines called for college athletes who wagered on sports at any level, in most cases, to lose one full season of collegiate eligibility. Under the new guidelines, the NCAA aims to modernize in light of the reality that many states have legalized sports wagering and made it accessible online. It conveys a strong message that such behaviors will not be condoned, even in regions where sports gambling has been legalized, but recognizes a sliding scale and flexibility is appropriate.

The NCAA acknowledges the potential for personal growth and learning from mistakes. Thus, the guidelines also implement reinstatement policies for less serious gambling activities. To become eligible for reinstatement, athletes subjected to penalties will have to complete an educational program on sports wagering rules and prevention. 

Ultimately, the new NCAA guidelines are designed to keep up with the times while upholding the values that make collegiate sports an integral part of the American sporting landscape. As sports wagering continues to evolve, colleges and students should adhere to and become familiar with these new guidelines.

Jackson Lewis’ Sports industry group provides training sessions for college coaches and student-athletes on sports wagering and other issues and advises university athletics departments concerning rules violations and infractions matters.

Changes to New York’s name, image, and likeness (NIL) law redefines “student-athlete” and limits the National Collegiate Athletic Association’s (NCAA) authority. The changes under NY Bill No. A07107B are effective immediately.

Updates to NIL Law

The definition of “student-athlete” has been expanded to include an individual who has completed at least their sophomore year of high school or inter-national equivalent and is eligible, or may in the future be eligible, to attend a college and participate in intercollegiate athletics. Previously, the law covered only a student enrolled at a college and participating in intercollegiate athletics.

Along with expanding the scope of who is covered in NIL, the new law prohibits an athletic association, conference, or other group or organization with authority over intercollegiate athletics, including, but not limited to, the NCAA, from:

  • Preventing colleges from identifying, facilitating, enabling, or supporting opportunities for a student-athlete to earn compensation for the student-athlete’s name, image, or likeness;
  • Entertaining a complaint, opening an investigation, or taking any other adverse action against a college for engaging in any activity related to a student-athlete’s NIL;
  • Restricting a college from participation in intercollegiate athletics because a student-athlete has or intends to earn NIL compensation; or
  • Penalizing a college from participation in intercollegiate athletics because an individual or entity whose purpose includes supporting or benefitting the college or its athletic programs or student-athletes violates the collegiate athletic association’s rules or regulations with regard to a student-athlete’s NIL.

Comparison to Proposed Federal Legislation

The New York law contradicts proposed federal NIL legislation (seeDraft Bill on Name, Image, and Likeness: Uniform Standard Contract, Medical Trust, NCAA Authority). The state’s NIL law is at odds with the federal bill as it limits the extent of NCAA authority to oversee the NIL process.

To bring nationwide uniformity to NIL laws, Senators Tommy Tuberville (R-Ala.) and Joe Manchin (D-W.Va.) proposed federal legislation that, among other things, would grant the NCAA authority in overseeing compliance with NIL and proposed NIL contracts. The federal proposal states that any violation would be considered a violation of the Federal Trade Commission Act.

Impact

New York’s NIL law is just one of many state laws popping up around the country trying to create parameters for student-athletes, the NCAA, and governing bodies, as well as any contracting businesses seeking to utilize NIL. Many of these laws, including New York, are in a standoff with the NCAA regarding its authority over NIL. Federal legislation may address this conflict in the future. For now, states will continue to establish their own rules for NIL contracts. Colleges and universities should monitor both state and federal legislation as the NIL environment continues to evolve.

The Jackson Lewis Collegiate and Professional Sports Industry group is well-versed in NCAA issues and continues to analyze ongoing developments in the area. Please contact a Jackson Lewis attorney with any questions regarding NCAA and any other collegiate and professional sports developments.

The “Protecting Athletes, Schools, and Sports Act of 2023” is draft legislation that includes new restrictions and benefits for student-athletes and booster collectives that would change the landscape of the issue of name, image, and likeness (NIL) rights in the NCAA.

Expected to be proposed by Senators Tommy Tuberville (R-Ala.) and Joe Manchin (D-W.Va.), the draft legislation is not yet complete and may undergo changes as the senators receive feedback from college leaders and others.

Uniform Standard Contract

In its current form, the draft legislation specifies that a student-athlete must enter a contract to reap NIL benefits. The contract must be signed by each party, outline the scope of work to be performed, state the timeline for the performance of such work, state the compensation to be provided, and describe the duration of the contract. It also must conform with the standard contract template to be developed by the NCAA. No later than 30 days after entering a NIL contract, a student-athlete must disclose the contract’s details to the institution in which the student-athlete is enrolled.

Significantly, a student-athlete would only be able to enter a NIL contract after they have completed at least one semester of course work. This restriction limits concerns over boosters and collectives engaging with student-athletes prior to enrollment. Further, it is unlawful for a booster or third party to directly or indirectly provide or offer to provide funds to induce a student-athlete to enroll in, transfer from, or remain at a specific institution.

Institutions can restrict athletes from entering into NIL contracts with certain persons or entities, including: adult entertainment, sexually suggestive, or sex-oriented products; alcohol products; casino and gambling products; tobacco and marijuana products; pharmaceuticals; any dangerous or controlled substances; drug paraphernalia; weapons, including firearms or ammunition; or any other product prohibited in NCAA competition. If a student-athlete is so restricted, the institutions also cannot enter a contract with those persons or entities.

Agents, third parties (including collectives), and individuals and boosters involved with representing or engaging in a NIL contract with a student-athlete must register with the NCAA and disclose the details of the contract. The NCAA is required to establish registration processes for such parties.

Medical Trust, Other Protections

Further, the draft legislation establishes a medical trust that requires organizers of any revenue-generating collegiate-level tournament or playoff to deposit not less than one percent of annual proceeds into a trust fund to be managed by the NCAA. The trust is intended to cover the costs of any out-of-pocket medical expenses relating to injury or illness sustained as a result of participation in intercollegiate athletics. The trust also would cover immediate family travel when a student-athlete is a dependent.

The draft provides for educational and financial literacy resources and scholarship protections for student-athletes engaged in a NIL contract.

NCAA Authority

Under the draft legislation, the NCAA will have the authority to conduct investigations and audits to assess compliance with the legislation. The NCAA will also be required to establish a dispute resolution process for student-athletes who assert a violation. Any violation of the legislation would be considered a violation of the Federal Trade Commission Act.

Impact

Even in its draft form, this legislation shows the NCAA will have significant oversight over NIL agreements. Student-athletes will not have full authority to contract as they please. Jackson Lewis attorneys will continue to monitor the draft legislation and any law governing NIL. In the meantime, both educational institutions and businesses looking to utilize NIL of student-athletes should be prepared to be subject to NCAA regulating the terms of these agreements.

The Jackson Lewis Collegiate and Professional Sports Industry group is well-versed in NCAA issues and continues to analyze ongoing developments in the area. Please contact a Jackson Lewis attorney with any questions regarding NCAA and any other collegiate and professional sports developments.

A national survey concerning sports betting among young adults between the ages of 18 and 22 commissioned by new NCAA President Charlie Baker indicates that an increasing number of young adults across the country are wagering on sports. The fact that 31 states have passed laws legalizing sport wagering and online sportsbook companies are flooding the airways with commercials trumpeting the ease of accessibility and value of their sports wagering and fantasy sports products may be factors influencing the behavior.

Among the key findings of the widely publicized survey are the following:

  • Sports wagering is pervasive among 18 to 22 year-olds, with 58% having engaged in at least one sports betting activity;
  • 67% percent of college students living on campus have engaged in sports betting;
  • 41% of college students who bet on sports have placed a bet on their own school’s teams, and 35% have used a student bookmaker;
  • Young adults report that advertisements have influenced their betting activity, with 63% reporting having seen such TV betting ads; and
  • Mobile sports betting is the preferred choice, with 28% choosing a mobile app for their wagering activity.

The NCAA plans to conduct a further survey of sports wagering by collegiate student-athletes during the 2023-24 academic year. The last such survey the NCAA conducted a few years ago (of 23,000 then-current student-athletes across all three NCAA divisions) found the following:

  • 24% of males and 5% of female student-athletes had wagered on sports within the previous year;
  • 76% of males and 61% of female student-athletes reported believing that sports wagering was a harmless pastime;
  • Male and female student-athletes in Division II and III engaged in sports wagering at higher levels than observed among Division I student-athletes; and
  • Sports wagering can lead to significant well-being issues for some student-athletes, due in part to gambling losses. (One in 50 male student-athletes met the standard diagnostic criteria for problem gambling.)

These findings were despite the consistent messaging to student-athletes that sports wagering by student-athletes is prohibited under NCAA rules. Using themes such as “Don’t Bet On It” and “Don’t Risk This,” the NCAA has cautioned student-athletes that NCAA bylaws on sports wagering do not allow student-athletes or athletics employees to bet on any sport in which the NCAA conducts a championship at any level (amateur, collegiate, or professional) or to share information for sports wagering purposes.

Student-athletes found in violation of the NCAA’s sports wagering rules (Bylaw 10) will be declared ineligible for competition, subject to an appeal to the Committee on Student-Athlete Reinstatement. The appropriate penalties are determined on a case-by-case basis based on the guidelines developed within the student-athlete’s division. Athletic staff members found to have violated the sports wagering prohibitions are subject to disciplinary action consistent with the rules and procedures of the NCAA infractions process (Bylaw 19).

The NCAA’s ongoing and evolving efforts to protect the well-being of student-athletes and the integrity of collegiate sports competition include the formation of the NCAA Mental Health Advisory Committee, composed of clinical and research experts from various medical and scientific organizations. The Committee advises on best practices for managing gambling disorders and dealing with the negative impact of social media harassment and abuse (which often emanates from or involves individuals participating in sports wagering). The NCAA has also partnered with EPIC Risk Management to provide a sports wagering and gambling harm prevention program. This program takes various forms, including on-demand virtual training and in-person campus educational sessions.

At a Washington D.C. symposium on June 8, 2023, NCAA President Baker stated that he views sports betting as a “major opportunity” and potential new revenue source for the NCAA. In making these comments, he specifically referenced the recent survey results and the fact that “two-thirds to almost three-quarters of all people between the ages of 18 and 22 [are] betting on sports.” He cautioned about the impact that sports betting could be having on student-athletes. “The truth is, if there are lots of kids on campus betting on college sports and betting on the teams on their campus, this puts student-athletes in a very difficult position.” He then called for the creation of a program to develop tools and techniques that athletes are going to need to deal with such issues and influences. These comments echo similar sentiments expressed by Stan Wilcox, NCAA Executive Vice President of Regulatory Affairs, who stated, “[W]hile sports wagering creates opportunities for our fans to uniquely engage with NCAA competition in a legal and responsible manner, we have to be mindful of the enhanced risks it creates, particularly around student-athlete well-being and competition integrity.”

Jackson Lewis’ Sports industry group provides training sessions for college coaches and student-athletes on sports wagering and other issues and advises university athletics departments concerning rules violations and infractions matters.

The fast-changing world of college athletics is about to collide with the ever-changing doctrine of joint employment.

In January 2022, on behalf of football and basketball athletes at the University of Southern California (USC), the National College Players Association (NCPA) filed an unfair labor practice charge with the National Labor Relations Board (NLRB) against USC, the Pac-12, and the NCAA. In the charge, the NCPA argued that college athletes should be considered employees and not student-athletes. On December 15, 2022, the NLRB’s Los Angeles Region agreed. NLRB General Counsel Jennifer Abruzzo said in a statement that USC, the Pac-12, and the NCAA have together “maintained unlawful rules and unlawfully misclassified scholarship basketball and football players as mere ‘student-athletes’ rather than employees entitled to protection under our law.” In September 2021, Abruzzo issued a memo (GC 21-08) making clear that some college athletes should be considered employees.

Thus, while the General Counsel’s stance on student-athletes is not altogether surprising, this is the first time the General Counsel has formally argued that not only is USC an employer, but also, the Pac-12 and the NCAA should be considered “joint employers.” This finding, if it stands, means that other athletes in other NCAA Division I Football Bowl Subdivision schools could argue they are also employees with the right to bargain directly with a conference. Furthermore, while many publicly funded schools are likely exempt from coverage under the National Labor Relations Act (NLRA), the affiliated conference may be subject to the NLRA. If the NLRB finds a joint-employment relationship exists, those conferences could be forced to bargain. It also opens the door to potential unions that would consist of athletes from more than one school.

This high-profile case, therefore, has the potential to change long-standing NLRB precedent on joint-employment (which is already a hotly contested issue before the NLRB), student-athletes, and NLRA jurisdiction that could affect employment practices at every college institution — with every college sports fan watching.

The NCPA’s Executive Director, Ramogi Huma, expressed his satisfaction with the NLRB’s Los Angeles Region’s ruling, saying, “Gaining employee status and the right to organize is an important part in ending NCAA sports business practices that illegally exploit college athletes’ labor ….” However, the NCAA continues to hold firm that “college athletes are not employees of the NCAA, regardless of sport or division” and “the NCAA’s commitment is to student-athletes, and it will continue to vigorously defend any attempts to divide them based on arbitrary standards, as it demeans the hard work and sacrifice of all who participate in college sports.” USC issued a similar statement, vowing to present “all the relevant facts … along with 75 years of favorable legal precedent” at the appropriate time.

The next step is settlement or a hearing with an administrative law judge. The latter is the more likely path, followed by significant appellate litigation.

While there are still multiple hurdles ahead for college athletes and institutions, these pressing labor law issues present a significant challenge to the incoming-NCAA President Charlie Baker, who will take over from Mark Emmert as of March 1, 2023, as well as all collegiate institutions.

Please contact a Jackson Lewis attorney with any questions.

The NCAA Division I Board of Directors has adopted key changes to the way in which NCAA infractions matters will investigated and processed in the future. The changes, which take effect on January 1, 2023, are intended to modernize and enhance the process, while focusing resources on the most serious violations. Another objective is to reduce the time needed to process and resolve violation proceedings.

President of the University of Georgia and Chair of the Division I Board of Directors Jere Morehead said in August that NCAA members are “committed to resolving cases fairly and in a timely fashion, thus holding those responsible for violations accountable and avoiding penalizing those who were not involved in rule-breaking.”

Among the key changes are the following:

Enhanced duty to cooperate: Institutions, staff, and student-athletes, upon learning of potential violations, will be required to preserve information, to provide immediate access to all electronic devices, and to encourage family members, spouses, boosters, and others to cooperate in the investigation. The number of aggravating and mitigating factors in the Bylaws has been expanded to reward prompt and full cooperation and deter efforts to hinder or impede investigations.

New head coach responsibility standard: Head coaches will be held responsible for serious violations committed by those who report to them directly or indirectly. Only in determining the appropriate penalty will the Committee on Infractions (COI) consider whether the head coach promoted compliance and monitored the program. The previous infractions approach, which included a rebuttable presumption of responsibility on the part of a head coach, has been abandoned.

Additional method for resolution: A new alternative for resolving infractions cases has been added, with the aim of providing the COI greater flexibility and reserving full hearings for only the most serious cases. The new method, known as a “Written Record Hearing,” will be employed in cases in which the facts are largely undisputed and the alleged violations not numerous or significant.

Clarification of appeal standard and limitation of appeals: Findings and penalties by the COI will be affirmed by the Infractions Appeals Committee (IAC) if there is information in the record that supports the decision. Findings and penalties will not be set aside unless no reasonable person could have made the ruling given the factual record. Appeals to the IAC as to the penalties imposed will be limited to those sanctions that fall outside legislated penalty guidelines, or “core penalties.” The majority of appeals will be decided based on the written record without the need for oral argument. Finally, and as is also the case with the revised COI process, extensions of time will be granted only in extreme and clearly defined circumstances.

Aggravating and mitigating factors: The new guidelines clarify which factors apply to institutions and which apply to involved individuals. Previously, this was unclear and often debated. New aggravating factors have been added, including hindering an investigation or inhibiting the COI’s processing of a case. New mitigating factors also have been added, including a demonstration of exemplary cooperation by, for example, securing meaningful cooperation from an outside party.

Name, image and likeness (NIL): In this rapidly evolving area, the bylaws provide that if available information indicates that behaviors surrounding an NIL offer or agreement is contrary to NCAA legislation, it shall be presumed that a violation occurred.  The charged institution or involved individual will then be required to rebut this presumption with credible and sufficient information that a violation did not occur.

In addition to the above changes, the new infractions construct eliminates the Independent Accountability Resolution Process (IARP), which had been created at the recommendation of the Commission on College Basketball chaired by Condoleezza Rice. While acknowledging the panel’s thoroughness in deciding the several cases referred to the IARP, it was concluded that this new process prolonged case timelines and required substantial additional resources to bring cases to resolution.

Finally, the Board of Directors announced that it will consider additional future changes that may help to deliver timely and fair outcomes in infractions matters. Among the subjects under further consideration are (i) requiring increased documentation of recruiting efforts, (ii) adjusting the size and composition of the COI, (iii) modification of penalty ranges (including alternatives to post-season bans), and (iv) enhancing confidentiality rules for involved parties during investigation by the NCAA enforcement staff.

The Collegiate and Professional Sports group at Jackson Lewis has represented Division I institutions in infractions cases and stands ready to assist colleges and universities facing such issues in 2023 and beyond.

The “New York Collegiate Athletic Participation Compensation Act” (S.5891-F/A.5115-E) allows New York college athletes to receive compensation for their name, image, and likeness (NIL) without losing their scholarships or eligibility. It also allows these players to use an attorney or agent for business deals without punishment.

Click here to read the full article.

The NCAA Division I Board of Directors has approved new guidance clarifying how schools can engage with student-athletes in the constantly evolving name, image, and likeness (NIL) arena on their campuses.

The NCAA first implemented the Interim NIL Policy on July 1, 2021. In November 2021, the NCAA released a Q&A document, which declared that schools could not use NIL transactions to compensate student-athletes nor dictate how students use their compensation. In May 2022, the Board released additional guidance specifying that institutional coaches and staff may not arrange a meeting between an NIL entity and a prospective student-athlete nor communicate with a prospective student-athlete on behalf of the NIL entity. The May 2022 guidance did not specifically extend this prohibition to involvement with NIL activities for currently enrolled student-athletes.

The latest guidance, approved on October 26, 2022, clarifies how schools can interact and support enrolled student-athletes’ NIL activities. Schools are encouraged to provide educational training to current student-athletes on such topics as financial literacy, taxes, entrepreneurship, and social media practices. According to the guidance, these educational programs also can be provided to collectives, boosters, and prospective student-athletes.

With respect to supporting student-athlete activities:

  • Schools are allowed to: administer a marketplace that matches student-athletes with NIL opportunities; arrange space for NIL entities and student-athletes to meet on campus or in school facilities; and promote student-athlete NIL activity on paid platforms, provided that the student-athlete or NIL entity is paying the going rate for the advertisement.
  • Schools are not allowed to: communicate with NIL entities regarding specific student-athlete requests or demands for compensation; assist proactively in the implementation of a specific student-athlete’s NIL activity; and provide a student-athlete access to equipment, unless the same benefit is generally available to the institution’s students.

With respect to supporting NIL entities and collectives:

  • Schools are allowed to: assist NIL entities in raising money for those entities; provide assets (e.g., tickets) to NIL entities under sponsorship agreements if those assets are available to other sponsors; encourage donors to provide funding to NIL entities if they are not directed to a specific sport or student-athlete; and facilitate meetings between donors and NIL entities.
  • Schools are not allowed to: subscribe to nor donate cash to the NIL entity; provide assets to a donor as an incentive for providing funds to the NIL entity; and allow athletics department staff members to be employed by an NIL entity.

Further, schools are not allowed to engage in certain negotiating, revenue sharing, and compensating activities, including:

  • Allow staff members to represent enrolled student-athletes for NIL deals; enter into contracts with the student-athletes for the sale of products related to NIL deals; engage in student-athlete revenue sharing; and allow coaches to compensate student-athletes to promote the coach’s camp.

Any violations that occurred prior to this guidance will be reviewed by the Board and be pursued only if the infractions are clearly contrary to the Interim Policy.

The Jackson Lewis Collegiate and Professional Sports practice group is well-versed in NCAA issues and continues to analyze ongoing developments in the area. Please contact a Jackson Lewis attorney with any questions regarding NCAA and any other collegiate and professional sports developments.