Newsletter, Image, Likeness Vol. 66: NCAA Wins A Battle, But What About The War?

The Weekly Longer NIL Thought.

In Vol. 65, I wrote about the new litigation initiated by the attorneys general in Tennessee and the Commonwealth of Virginia against the NCAA, which seeks to have the court deem that the NCAA's restrictions on NIL collectives communicating offers to high school athletes and those in the transfer portal should be stricken as unreasonable restraints on trade.

After a very tight briefing schedule, which included some compelling arguments lodged by both sides, the court refused to enter a temporary restraining order (TRO) that would preclude the NCAA from enforcing its NIL guardrails while the case is pending.

The NCAA won a very important battle that would have otherwise provided the plaintiffs with a lot of leverage.

The judge wrote that the plaintiffs "failed to demonstrate, at this juncture, the requisite irreparable harm for the issuance of a TRO."

But what about the war? That's far from over. And some language from the judge may be causing those at the NCAA to have a little bit of heartburn.

“Considering the evidence currently before the Court, Plaintiffs are likely to succeed on the merits of their claim under the Sherman Act,” the judge wrote in his order denying the requested TRO relief. He added that "there can be no dispute that the NCAA enjoys complete power over the labor market within Division I athletics."

"Unless the NCAA adopts a?major restructuring?along the lines proposed by NCAA president Charlie Baker—and does so soon—it faces the prospect of a federal judge ordering the association to change fundamental rules," says my friend Michael McCann . "This is also occurring as an NLRB regional director Monday?deemed?the men’s basketball players at one member NCAA school,?Dartmouth, employees, thus pitting Dartmouth at odds with NCAA membership rules it contractually agreed to follow but also rules that might be declared illegal."

Clemson And South Carolina Team Up For Proposed NIL Bill.

The athletic departments at the 2 schools are working in tandem on a proposed bill that, if passed in the State of South Carolina, would allow schools in the state to bring collectives in house. Athletic departments would be empowered to identify NIL opportunities for athletes as well as serve as the facilitators for deals between athletes and third parties.

Congress Is Still Discussing NIL Legislation.

Despite no such legislation ever making it out of committee.

The latest effort is from U.S. Senator Marsha Blackburn and Cory Booker, who didn't even create new legislation but merely re-introduced their "NCAA Accountability Act."

Here are the bullet points from a press release on Sen. Blackburn's website:

Establish Due Process:

• Requires the NCAA to provide its member universities with fair notice regarding enforcement proceedings, including information about the status of the investigation, alleged violations being investigated, the involved individuals and programs, the potential penalties of each allegation, and the rights and resources available to the accused. The NCAA is required to provide this information through:A notice of inquiry (when the NCAA opens an investigation into a member).A notice of allegations (if the NCAA files formal charges).

• Requires the NCAA complete any investigation no later than one year after it begins.

• Prohibits the NCAA from publicly disclosing information relating to an ongoing investigation until formal charges are filed in the notice of allegations.

Promote Fairness, Consistency, Accountability:

• Provides member universities the right to resolve disputes (over sanctions for bylaw infractions) with the NCAA through arbitration. The 3-person arbitration panel will provide an independent, unbiased review and legally binding decision.

• Requires the NCAA to conduct its enforcement proceedings and investigations in a fair and consistent manner. The penalties issued against member institutions for bylaw infractions shall be equitable with respect to severity of the infraction.

Enable Enforcement:

• Directs the DOJ to establish supervisory and investigatory procedures to determine the NCAA’s compliance with this bill.?

• Authorizes the DOJ, through an administrative law judge, to fine the NCAA or individuals on staff (up to $15,000,000) for violating the provisions of this bill.

• Authorizes the DOJ to order the removal of any member on the NCAA’s board of governors.

Evaluate Legal Standing:

• Applies to any interstate athletic association, conference, or other organization with authority over intercollegiate athletics or that administers intercollegiate athletics, with at least 900 member institutions.

NIL Service Provider Clearinghouse Is Announced.

The private entity called the Athlete National Sports Business Clearinghouse (ANSBC) will "run a criminal background check, a sex offender registry check, a professional licensing check, social media checks, a negative news check and much more, including items it?will screen for within each of those checks."

It's a pass-fail test for service providers that is being compared to TSA PreCheck.

SEC Commish Greg Sankey Says The NCAA Is Distracted By NIL-Related Cases.

Ross Dellenger interviewed Sankey, who said that the NCAA should focus on the "big realities" in college sports instead of being fixated on individual cases of NIL rules violations. Sankey was probably compelled to utter such a statement as a result of 2 schools in his conference (Tennessee and Florida) being under investigation related to NIL.

Missouri Gets Major Influx Of Cash To Use For NIL Purposes.

Ohio State Player Gets A Shampoo Deal.

JT Tuimoloau has released a dandruff shampoo as part of his partnership with Ohio State collective The 1870 Society.

Highly Touted 2025 QB Prospect Signs With Alo Yoga.

Julian "Juju" Lewis is currently committed to the University of Southern California and has become the first high school athlete to officially endorse Alo Yoga.

“For us, I don’t want to sign 50 guys,” said Grant Gaon , head of athlete marketing at Aloy Yoga. “I want to sign 10 to 15 guys that align with our values, which are mindfulness and wellness. Juju’s actually the only high school athlete and our first.”

Crocs Signs 6 Athletes To NIL Deals.

Its 2024 roster includes:

• Frederick Richard - Gymnastics; University of Michigan
• Jared McCain – Basketball; Duke University
• Janiah Barker – Basketball; Texas A&M
• Mackenzie Mgbako – Basketball; Indiana University
• DJ Rodman – Basketball; University of Southern California
• Grace McCallum – Gymnastics; University of Utah

New Florida QB DJ Lagway Links Up With Leaf Trading Cards.

Lagway joins other college QBs such as Nico Iamaleave and Caleb Williams as athletes who have signed with Leaf.

Final Thoughts.

That is it for Vol. 66 of Newsletter, Image, Likeness. Thanks to the more than 8,165 people who have subscribed to this newsletter thus far, and please feel free to share this free resource with others on LinkedIn or elsewhere.

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