NCAA clarifies compensation rules but is crackdown likely?
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Eleven months after the NCAA lifted most restrictions against athletes for their reputation, college sports leaders are trying to send a warning to schools and boosters who believe a line has been crossed: there are still rules and they will be enforced.
But after last year’s Supreme Court ruling in a no-confidence motion against the NCAA, is crackdown on so-called aggregates of name, image, and similarity agreements still possible – or even possible?
“I didn’t think (NCAA) would try at any time,” said Maddie Salmon, a sports attorney and former Duke Lacrosse player. “That’s why many attorneys are giving careful advice on what is approved and what is not approved. Especially when it comes to joint and various NIL deals.”
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The NCAA’s Division I board of directors on Monday approved guidelines drawn up by a group of college sports administrators, clarifying the type of NIL payments and booster involvement that should be considered a recruitment violation.
“Specifically, the guideline defines a booster as any third-party entity that promotes, assists in recruiting an athletics program, or provides benefits to employed, enrolled student-athletes or their family members,” the NCAA release said. “The definition may include the funnel name of the potential student-athlete or the enrolled student-athlete who may consider transfer, and the ‘combined’ set up for the duplicate transaction.”
The NCAA added a reminder: Recruitment rules prevent boosters from hiring or providing benefits to prospects.
The guidelines are effective immediately. NCAA enforcement personnel were instructed to look for potential breaches before May 9, 2022, but “follow only those actions that clearly contradict the stated interim policy, including the most serious breach of recruitment rules or payment for athletics performance.”
The NCAA has not changed or renewed its rules.
“I don’t think they’re even clarifying the rules,” said Darren Heitner, an attorney who helped make the NIL law in Florida. “I understand that it is only certain people who have formed a working committee that have decided that after about 11 months we want to enforce our rules.”
The booster-funded Emergence Board asked the DI Council in February to review NCAA’s Interim NIL Policy. Concerns among many in college sports are that money is being paid from the community in hopes of transferring high school recruits and college athletes to a specific school.
“Some things look like pay to play,” Salamon said. “There are rules on books in the NCAA around boosters. I think the NCAA has been hesitant to enforce anything. This has encouraged a lot of people around to be a little clearer.”
Last year, the NCAA lifted its long-standing ban on athletes making money from sponsorship and approval agreements. However, the NCAA’s Amateur Athlete Model had three pillars in place:
– Athletes can not only be paid for their sport;
– Compensation cannot be used to seduce an athlete in a particular school;
– The financial system must have some kind of quid pro quo agreement where the athlete was paid for the services rendered, such as a social media post or appearance.
The NCAA did not prohibit boosters from engaging in NIL activity. However, without detailed NCAA rules and with state-level NIL laws differing across the country, it has struggled to determine which activities are prohibited by both schools and associations.
Some state laws also prohibit boosters from engaging with employers, but there is little appetite for enforcing those laws.
If the NCAA starts targeting certain groups, it could start a new lawsuit against the association.
Mitt Winter, a sports attorney in Kansas City, Missouri, said enforcing the NCAA rules is not a clear-cut antitrust violation.
“So the question is, under the no-confidence law, is the rule that is being applied reasonable?” Winter Dr. “And from reading all of me, the rule they’re going to apply is the rule that booster and other third parties such as aggregates can’t pay athletes for a school promise.”
Heitner College offers a number of joint ventures and businesses that NIL has contracted with athletes. He says he insisted on clients from the start until the athletes came to the school of their choice before getting involved.
“I don’t think it’s a joint issue,” he added. “I think it’s a matter of the NCAA, ‘Hey, we’re always in a position that boosters can’t influence the decision-making of athletes, especially high school athletes who are not yet enrolled in university.'”
Gabe Feldman, Tulane’s director of sports law, said the NCAA would pioneer with its NIL implementation and serve the best.
“I think it’s probably a safer and more fair approach,” Feldman said. “Hindsite is 20/20, but what could be a better approach is to come up with clear rules first and start enforcing them so that we don’t go into situations where it would be unfair to start enforcing the rules.”
College sports conferences and NCAA cases have been frequently targeted, and last June’s Supreme Court ruling left the door open for more.
Feldman said the NCAA could expose itself to further mistrust by failing to enforce its existing rules. But both the no-confidence motion and the NCAA enforcement are notoriously slow.
“It would be as capable as a tortoise and a tortoise,” Feldman said. “None will be completed quickly, but there are many risks in the interim.”
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