NCAA tells schools to ignore state laws in favor of own NIL legislation

Bills in Arkansas, Colorado, Missouri, Montana, New York and Oklahoma have been sponsored or passed by lawmakers in recent months designed to avoid NCAA investigations into schools’ NIL efforts. Texas has a bill set to be enacted starting July 1 that will allow third-party entities to facilitate deals on behalf of universities.

In short, schools are telling the NCAA to kick rocks as state legislation is passed to protect them from potential punishment. The NCAA’s response: ignore current and future state laws and follow its own policies or face the consequences.

The association issued a two-page document Tuesday featuring six questions and answers providing guidance to member schools as they navigate the uncharted waters of NIL.

“NCAA rules are adopted by member schools,” the governing body wrote. “It is not fair to those schools who follow the rules to not enforce rules against those who choose not to do so. Schools who do not like the application of a particular rule should work through the NCAA governance process to change the rule. Unless and until the membership changes a particular rule, all schools, as part of a voluntary membership, are required to comply.”

The memo added that schools must “adhere to NCAA legislation (or policy) when it conflicts with permissive state laws.”

What does the enforcement of said policies look like? Well, that remains unclear.

“The NCAA, like any other private association, can establish and enforce rules, subject to state laws that govern it,” attorney Darren Heitner, who works with institutions and collectives, told On3’s own Pete Nakos. “A private association’s rules and regulations generally must comply with state laws and cannot override nor contradict state laws. The NCAA would need to prevail on an argument that the state law is unconstitutional, which is a very high burden and, in my opinion, rather unlikely.”

A separate sports attorney, Dan Lust, told On3 that today’s memo indicates the NCAA believes it is above the law.

“At the end of the day, the NCAA is now trying to take a stance that is not the law of the United States,” he said. “It’s not the law across each 50 states. In each of the 50 states, the NCAA is telling them they are above the law of our country.”

Some notes from the NCAA’s new document:

• Institutions may not use NIL transactions to compensate student-athletes for athletics participation or achievement or as an improper inducement — again, no pay-for-play
• Boosters or collectives are not permitted to engage in recruiting activities, including recruiting conversations
• Institutions may not provide assets (e.g., tickets, suite access, club seating) to a donor as an incentive for providing funds to the NIL entity
• NIL compensation may not be contingent upon enrollment at a particular school or upon residency in a certain location to circumvent this standard
• Event operators, sponsors and institutional opponents may not pay an NIL entity (collective) for a competition in which student-athletes participate

You can read the memo in its entirety here.

Will the NCAA continue to be all bark with no bite? Guess we’ll see.