Lack of detailed NIL rules calls into question NCAA enforcement
As the market for college athletes to make money from their names, images and likenesses is rapidly changing, NCAA law enforcement faces the delicate task of trying to police activities currently unregulated by detailed and uniform rules.
NCAA Vice President of Law Enforcement Jon Duncan told The Associated Press that letters of inquiry had been sent to several schools over the past few months. He declined to identify the schools, but said the letters were not indicative of an official investigation and were frequently used for a variety of reasons.
“It’s just a dialogue with a school to get more information about possible violations,” he said this week.
The NCAA lifted most restrictions on athletes making money through sponsorship deals or as paid sponsors last summer after many states passed laws that usurped the rules of the NCAA. association. The NCAA adopted an interim policy that opened up a new market, but without consistency from state to state. Schools were encouraged to create their own policies, following state laws where applicable.
Although the NCAA does not have NIL-specific regulations, agreements must still adhere to existing rules that prohibit recruiting inducements and athletes paid only to play or for performance.
“We don’t enforce the NIL agreements, and we don’t enforce the interim policy, which is largely permissive,” Duncan said. “We are looking at rules that are still on the books and behaviors that are still violations. Or potentially (violations).
But in the absence of well-defined do’s and don’ts, figuring out which activities cross the lines is a challenge.
“Agreements are made with third parties. And the NCAA obviously has no jurisdiction over those third parties,” helps Mit Winter, a former college basketball player and now a sports law attorney for Kennyhertz Perry. “(The NCAA) can talk and gather information from schools and athletes. But any incriminating information will most likely relate to people who work for or have some involvement with third parties.
BYU is the only school that has publicly acknowledged providing the NCAA with information about a NIL deal. BYU officials helped a Utah-based company pay the equivalent of college tuition to its football players in exchange for athletes promoting the company’s products with posts and social media appearances .
A proposed NCAA policy would have prohibited schools from participating in facilitating NIL agreements for their athletes. But the legislation never caught on after a Supreme Court ruling in May left the NCAA vulnerable to future antitrust lawsuits.
State laws in Florida, Alabama and elsewhere have prevented schools from facilitating NIL agreements for athletes, but it has left schools in those states at a seemingly disadvantaged recruiting ground compared to those in states that have looser or non-existent NIL laws.
State legislators are now seeking to repeal or rewrite NIL laws. Earlier this week, Ohio State announced it was launching a program to “create and foster” NIL opportunities for its athletes.
Across the country, NIL collectives backed by encores have sprung up from West Virginia to Washington. They’re designed to connect college athletes with money-making opportunities, where they can get paid for things like personal appearances, signing autographs, or doing a podcast.
“I could see the NCAA wanting to gather information from schools to see if there’s a relationship between the school and its employees and the collectives,” Winter said. “I can see the NCAA is very interested in this.”
As long as there is quid pro quo – the athlete provides some type of service for payment – it would be difficult to consider an agreement to conflict with the NCAA’s general ban on pay-to-play.
“No body can specifically assess what fair market value is in this context,” said attorney Darren Heitner, who helped craft Florida’s NIL law. “It’s completely subjective.”
Heitner has worked with companies and business owners on NIL opportunities for athletes in Florida and Miami. He said the NCAA hasn’t provided much guidance on what might jeopardize an athlete’s eligibility.
“Hopefully we get more guidance and more clarification,” Heitner said.
NCAA enforcement is not involved in policy making and does not do these surveys to gather information to inform future NIL legislation, Duncan said.
He said law enforcement was prompted to contact the schools by media reports, comments from member schools and information from sources, which is usually how activities land on his staff’s radar. .
“It’s not an academic exercise for us. It’s not just exploratory to understand what’s going on in that environment, to understand the landscape,” Duncan said. “It’s to make sure that transactions, arrangements, whatever, don’t violate the rules that members tell us are important.”
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