Newsletter, Image, Likeness Special Edition: New NCAA NIL Memo Should Concern Many Schools

The NCAA has disseminated a memorandum concerning the standard of review for violations related to NIL activities (h/t Mit Winter for tweeting the memo).

It says that when available information supports that the behaviors leading up to, surrounding and/or related to an NIL agreement or activity are contrary to NCAA legislation or the interim NIL policy, then the enforcement staff and Committee on Infractions shall presume a violation occurred and that to rebut the presumption of a violation, the institution must clearly demonstrate that all behaviors complied with NCAA legislation and the interim policy.

The above is actually nothing new. The NCAA said this back in October 2022 when it announced guidance related to the interim NIL policy. Here is a screenshot from the NCAA's release back in October 2022:

But the memo much further in explaining what will constitute an impermissible contact, offer, and benefit, and it should make many institutions very nervous.

It is deemed impermissible contact when an institutional staff member directly or indirectly contacts a prospect who is not in the NCAA Transfer Portal to discuss NIL opportunities. What constitutes indirect contact? If a staff member is using a booster or an NIL collective as a go-between, then that should fall within the scope of indirect contact, right? It is hard to believe that this type of activity has not been occurring. Additionally, there are likely instances where staff members were very much directly involved in contacting prospects to discuss specifics about potential NIL deals.

Furthermore, the memo says that if a representative of the institution's athletics interests, which includes boosters and collectives, contacts a prospect or their family about potential NIL opportunities prior to the prospect signing with the institution, then that is an impermissible contact. I hate to break it to the NCAA, but this is likely occurring with every single 4 and 5-star prospect. The big question is whether the NCAA will do anything about it.

Then, we get to the section on impermissible offers, which one would think the NCAA prioritizes enforcing over impermissible contact. Honestly, if the NCAA sought to enforce this, it would probably need to multiply its staff by 100. Here, the memo begins by saying an institutional staff member cannot, in any way, offer, communicate and/or guarantee an NIL opportunity to a prospect, their family, or representatives during their recruitment. Again, while not occurring at every school, it is happening at certain institutions.

The activity covered in the next prong is rampant. The memo states that a representative of the institution's athletics (again, including a booster or collective) cannot announce and/or enter (whether verbally or in writing) into an NIL agreement with a prospect prior to their enrollment at the institution. We have seen pre-enrollment announcements (i.e. Nijel Pack) and anyone who is not naive knows that a vast number of deals are at least verbally entered into with athletes prior to enrollment. Many of these deals come about before the athlete even commits to the school.

Finally, under the impermissible offers section, the NCAA goes after what I referred to as the Zip Code Clause in Vol. 11 of this newsletter. The NCAA says that it is impermissible for an NIL agreement to require that a prospect is in the local of the institution prior to enrollment in order to fulfill the terms of the agreement. A collective also cannot engage in recruiting activities and/or the promotion of specific prospects prior to their enrollment. While it may be simple to curb the promotional aspect, good luck to the NCAA in causing collectives to now hold off on recruiting specific prospects. It is happening everywhere.

The final section on impermissible activities goes over impermissible benefits and states that an institutional staff member, booster, or other institutional representatives cannot solicit, facilitate, and/or provide additional NIL opportunities to secure an athlete's continued enrollment at the institution. There has recently been a lot of praise thrown at boosters and collectives for entering into NIL deals with athletes to cause them to stay at a school instead of transferring to another institution or going pro. This prong seeks to kill that practice, but I imagine it will be very difficult to patrol unless you see boosters and/or collectives continue to outwardly promote their efforts to keep athletes at their respective institutions (i.e. the One More Year Fund).

Importantly, this memo seems to focus primarily on punishing schools, and not athletes. Remember back to the October 2022 guidance where the NCAA said, "the board reiterated its previous position that the focus of its NIL guidance is not intended to question the eligibility of enrolled student-athletes." The new memo has sections on charging and adjudication, which appear to only discuss school violations and potential punishment for the institutions. That said, the NCAA could change course at any moment and I would strongly encourage athletes and their representatives to be very cautious as they establish their NIL strategies with respect to deals concerning boosters and collectives. Furthermore, institutional staff needs to be more careful than ever given that their involvement in NIL activities will probably be the number one priority for the NCAA if/when it begins to enforce its interim NIL policy.

Final Thoughts.

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