NCAA continues to focus on NIL rule violation enforcement

Editor’s note: This story has been updated to reflect updated information from the NCAA.

The NCAA continues to attempt to clean up NIL’s impact on the recruiting trail and the Transfer Portal.

On3 originally reported the NCAA disseminated a memorandum that further detailed the standard review for violations related to NIL activities. However, an NCAA spokesperson on Monday told On3 the document was not a new memo to members. It was a “supplement used as a discussion document by the DI Council’s NIL Working Group,” the spokesperson said.

In October 2022, at the recommendation of the NIL Working Group, the Division I Board approved and released a new set of clarifications for member schools about how existing NCAA rules – recruiting, tampering, etc. – were impacted by the NIL interim policy, laying out in some detail what is and is not allowed.

The Board adopted a new rule for enforcement in cases that involve NIL, which took effect Jan. 1:

“19.7.3 Violations Presumed in Select Cases. In cases involving name, image and likeness offers, agreements and/or activities in which related communications and conduct are subject to NCAA regulation, the infractions process (including interpretive requests) shall presume a violation occurred if circumstantial information suggests that one or more parties engaged in impermissible conduct.

“The enforcement staff may make a formal allegation based on the presumption. The hearing panel shall conclude a violation occurred unless the institution or involved individual clearly demonstrates with credible and sufficient information that all communications and conduct surrounding the name, image and likeness activity complied with NCAA legislation.”

Document shows NCAA’s concern about NIL violations

Regardless, the supplement used as a discussion document by the DI Council’s NIL Working Group further sheds light on the NCAA’s attempt to reel in violations related to NIL activities.

Since its introduction in July 2021, coaches and athletic department officials have expressed great concern about how NIL impacts the recruiting trail.

On National Signing Day in December, Oklahoma coach Brent Venables said rival programs “waved money opportunities” at Sooner commits and top targets down the stretch. Nebraska coach Matt Rhule, who returned to the college game after three years in the NFL, said NIL is being “misused and mishandled in a lot of places.” Plus, USC coach Lincoln Riley openly admitted the Trojans lost out on recruits this cycle because of NIL.

Additionally, there are others that have vocally complained that boosters and NIL collectives have bought players in the Transfer Portal or tampered with players currently on rosters by encouraging them to leave their current school.

For months and months, coaches have been clamoring for enforcement from the NCAA. But Jon Duncan, the NCAA’s Vice President of Enforcement, recently said it’s going to take time for investigations to bear fruit.

“We’ve had to close a lot of cases because we’ve not been able to substantiate violations,” Duncan told Matt Banker of Collegiate Sports Connect. “But we still have a lot in the hopper. We have a lot of cases where the investigation is concluded. We’ve substantiated NIL or NIL adjacent behavior or violations. We’re working with schools.

“They know who they are. It’s not going to surprise anybody to get to a resolution on these cases. There’s more activity below the surface than the members would realize. There will be sunshine around those cases soon. But the enforcement staff is working all day, every day with an urgency to protect those compliant programs knowing that there’s tampering, knowing there’s impermissible recruiting, knowing that there are inducements, knowing that there are impermissible booster contacts and that we’re working really hard to get to the bottom of those. We’re making more progress than the members might know.”

Supplement outlined what eventually became policy

The supplement – which was shared late last week by Mit Winter, a sports attorney and NIL expert at Kennyhertz Perry LLC – initially focuses on what would eventually become one of the cornerstones of the NCAA’s clarification of what is and is not allowed with NIL activities.

In part, the supplement stated that when available information supports the behaviors leading up to, surrounding and/or related to an NIL agreement or activity contrary to NCAA legislation or the interim NIL policy, then the enforcement staff and Committee on Infractions shall presume a violation occurred.

Plus, it says that to rebut the presumption of a violation, the institution must clearly demonstrate that all behaviors complied with NCAA legislation and the interim policy. Nonetheless, the supplement further reinforces what the NCAA believes a presumed violation is.

Impermissible contact vs. impermissible offers

While it didn’t officially become an official guideline, the discussion document used by DI Council’s NIL Working Group also attempted to further detail what would constitute an impermissible contact, offer and benefits. NIL expert Darren Heitner of Heitner Legal said this past weekend this discussion point would “make many institutions very nervous.”

The discussion document said it would be 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.

“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,” Heitner said in his NIL newsletter. “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 discussion document said 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 four and five-star prospect,” Heitner said. “The big question is whether the NCAA will do anything about it.”

The DI Council’s NIL Working Group also discussed what might be deemed impermissible offers in the supplement.

According to the supplement, a representative of the institution’s athletics 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 and anyone who is not naive knows that a vast number of deals are at least verbally entered into with athletes prior to enrollment,” Heitner said. “Many of these deals come about before the athlete even commits to the school.”

Coaches hopeful for enforcement

Coaches on the recruiting trail applaud the NCAA’s efforts to beef up what is and isn’t acceptable with NIL. Yet, two Power 5 recruiting coordinators On3 talked with over the weekend believe that nothing really would change until the NCAA actually puts the hammer down on a school, collective or booster.

“Pages of guidelines are worthless unless they can be enforced,” one coach said. “And so far, the NCAA has shown us that they simply can’t enforce the rules.”