Apparently weary of waiting on Congress to clean up its mess, the NCAA has reportedly finally taken action on name, image and likeness. In true NCAA fashion, the action doesn’t appear rooted in reality.
USA Today Sports obtained a letter sent by the NCAA to member schools with new guidelines, some of which contradict NIL laws passed in several states.
According to USA Today, the letter tells its institutions, “If a state law permits certain institutional action and NCAA legislation prohibits the same action, institutions must follow NCAA legislation.”
Message: The NCAA is above the law.
That doesn’t sound like a winning legal strategy.
The NCAA’s argument: Since membership is voluntary, state laws are irrelevant if they go against NCAA rules.
As Villanova sports law professor Andrew Brandt likes to say, “There will be lawyers.” This almost certainly will pave the way for legal challenges to the NCAA. A total of 32 states have adopted some form of NIL legislation. For example, Arkansas, Texas and Oklahoma all have NIL laws that conflict with NCAA regulations and in some cases shields institutions from NCAA retribution.
Maybe a legal battle is the NCAA’s intention with its memo that was sent to schools on Tuesday. Maybe it is trying an force some sort of action that would bring clarity to the chaos.
Mit Winter, a Kansas attorney who is an expert on NIL rules, told USA Today that the NCAA’s strategy may be, “If we don’t take a stand, as an entity, we become irrelevant.”
The NCAA had hoped that Congress would come to the rescue. Recently a group from the University of Kentucky athletics department, led by athletics director Mitch Barnhart, visited Washington to meet the Kentucky delegation about NIL matters. The trip was part of an SEC initiative.
“We’ve got 50 states that are running it 50 different ways,” said Barnhart of the trip. “There’s just no way college athletics can continue to function in that way.”
If the “please help us” strategy fails – congressional action doesn’t appear imminent – new NCAA president Charlie Baker recently said he is prepared to address NIL. Baker’s opinion is that previous NCAA leadership made a mistake by not attempting to regulate NIL.
What are these NCAA guidelines for NIL? According to Sports Illustrated, the memo said NCAA will prohibit school foundations from participating in NIL; donors may not receive incentives for giving to NIL collectives; boosters are not permitted to engage in recruiting activities and schools may not pay student-athletes for compensation.
The current NIL law in Texas allows schools such as Texas and Texas A&M to provide extra benefits to those who donate to collectives such as the Longhorn Foundation (Texas) and 12th Man+ Foundation (Texas A&M). Donors would earn points toward better tickets at home games, access to special events, priority seating at bowl games for NCAA Tournament games.
So will the NCAA penalize a school for an action that follows its state law, but violates NCAA guidelines? The NCAA says it will, though it has yet to do so.
You know what the NCAA wants. It wants less money going to student-athletes and more money going to college athletic programs for things such as administrative salaries, coaching salaries, outrageous facilities, etc. Those are the very things it has failed to cost-control in the first place.
Unlike the NFL or the NBA, college sports has no salary cap, no restrictions on spending. And student-athletes are not unionized. They have no collective bargaining agreement.
“In pro sports leagues, players are bound by the CBA and it trumps state laws (think gambling; still illegal while legal in most states),” Brandt tweeted Tuesday. “But college athletes have no union, have no CBA, are not legally bound through labor law. State laws have more weight for them.”
A legal showdown is coming. And the NCAA has not fared well recently in court.
Oklahoma state Rep. Jon Echols, who sponsored a recent NIL law in his state, told USA Today, “My point here is that the NCAA has absolutely no idea about what it’s doing on NIL.”
