NCAA to release new NIL guidance regarding institutional involvement

The NCAA has yet enforce its NIL interim policy. But that’s not stopping the governing body to attempt to further contextualize its rules.

The Division I Board of Directors is set to hold in-person meetings next Tuesday and Wednesday, per the NCAA’s calendar. The same group who put out guidance directed at NIL collectives in May is now set to adopt new guidance next week on the role institutions can play, per The Athletic‘s Nicole Auerbach.

The guidance will reportedly address what is permissible and impermissible when it comes to an athletic department’s involvement in NIL activity. Per Auerbach, new rules will not be enacted but the guidance will clarify the role a school can play. This will include examples of what activities are prohibited.

One situation, which would be permitted, is an athletic department assisting in NIL education of its athletes. On the flip side, a university giving cash to a collective to funnel money to athletes is prohibited. This would not be classified as a new rule. The NCAA has always been against institutions paying athletes for their athletic performance.

An interesting note is schools have always been able to introduce athletes to boosters, which has always been allowed by the NCAA.

“I think they literally just made it easier, you can connect with the boosters,” an NIL agent told On3 on the condition of anonymity.

NIL stakeholders who responded to On3 characterized the news of the NCAA adopting new NIL guidance as a yawn. Others pointed to the fact of how the NCAA has yet to actually come down with enforcement on NIL.

The one area to note, however, will be what it could mean for collectives that have been fully backed by the athletic departments whose athletes they support.

“It looks like it’s aimed at situations where a school is helping financially support a collective that is doing its own deals with athletes,” attorney Mit Winter told On3.

College football ‘needs actual enforcement’

For as much as NIL has allowed student-athletes to finally turn a profit off their publicity rights, the acronym has also sometimes turned into a catch-all phrase for deals that can be used as recruiting inducements or pay-to-play.

There have been countless stories of recruits being offered cash for their commitment. It’s a similar story in the Transfer Portal, too.

The NIL guidelines released this spring have not slowed down any of the activity.

“We don’t need more guidelines,” a Big 12 assistant coach told On3 on the condition of anonymity. “We need actual enforcement. Everyone knows what’s right and wrong. But everyone also knows there’s no teeth behind any of the rules with NIL. Until somebody gets hammered, it won’t matter how many new rules are put in place.”

Capitol Hill will hold the power on NIL enforcement

One of the main reasons why the NCAA has yet to come down with a punishment due to NIL violations is because of the threat of being taken to court. The Supreme Court of the United States unanimously upheld a district court’s ruling in NCAA v. Alston in June 2021. The ruling stated the NCAA was violating antitrust law by placing limits on the education-related benefits schools can provide to athletes. The decision made it known NCAA restrictions — including on NIL activity — could face serious legal challenges in the future.

Throughout the summer, conference commissioners asked members of Congress to enact NIL legislation. There have been four NIL bills introduced in the last two months but none have moved forward.

Five senators announced plans to reintroduce the Athlete Bill of Rights in Congress in August, led by Sens. Cory Booker (D-NJ) and Richard Blumenthal (D-CT). Their bill includes health, wellness and safety standards.

U.S. Senators Tommy Tuberville (R-AL) and Joe Manchin (D-WV) sent letters to 30 collectives asking for feedback as part of their process of drafting bipartisan, federal legislation related to NIL.

And U.S. Senator Roger Wicker (R-MS) reintroduced a bill in September aimed at curtailing the impact NIL has made in recruiting earlier this month. Most importantly, the bill prohibits former student-athletes from retroactively suing over NIL. The legislation also states athletes would not be considered employees – the main argument some Republicans and Democrats have had over NIL legislation.

And then there’s the latest piece of legislation, introduced at the end of September, which would curtail tax-deductible collectives. 

Where NIL legislation goes from here is a major question. Midterm elections are nearly a month away. Conference commissioners called for reform, driven by legislation, on Capitol Hill throughout the summer. And many Democrats and Republicans continue to remain far apart on much of the language that has been introduced in these bills.

The one route, sources say, is that the House of Representatives goes Republican and the party holds control of the Senate following November’s elections. This would allow a window where it’s more likely NIL legislation could be passed.