The NCAA’s Division I Board of Directors issued a new set of clarifications this week for its interim NIL policy in hopes of better distinguishing NIL from pay-for-play. But in doing so the association runs the risk of creating potential legal challenges under state NIL statutes and federal antitrust law, as well as complicating NIL services provided by law schools and other university departments.
The revisions feature a set of charts of “permissible” or “impermissible” activities. Permissible activities for schools include: offering educational sessions for athletes, boosters and collectives; engaging with an NIL entity to help it inform athletes of opportunities, including by providing it space on campus for meetings; retweeting athletes’ NIL posts; purchasing items related to an athlete’s NIL deal; assisting an NIL entity in raising money; and requesting a donor to provide funds to an NIL entity.
On the other hand, schools can’t relay specific requests from athletes to NIL entities for compensation and athletic departments can’t function as agents for athletes. Schools are also prohibited from offering a range of NIL-related services to athletes unless those services are offered to the student body at large. They include the development of promotional materials and review of contract offers.
Sportico discussed the clarifications with several attorneys who work in DI athletic departments. Each described them as not especially impactful or transformative, except for how they intersect with education-related NIL services offered by universities.
Several law schools have begun to offer, or are contemplating the offering of, NIL services. (Disclosure: I direct the sports law program at UNH Franklin Pierce School of Law, and we are exploring that possibility.) The University of Minnesota School of Law, for example, has partnered with a local law firm to launch an NIL clinic, which will supply legal services to students with NIL needs. The NCAA’s guidance could be interpreted to bar a university’s law school from offering an NIL clinic if the only recipients of those services were athletes. However, Minnesota’s clinic makes clear its services are for students at large, be they athletes, esports players or social media influencers. Expect to see other law schools follow that model.
Any NCAA prohibition on education-related services tied to NIL could also run afoul of the law. In NCAA v. Alston, the U.S. Supreme Court held that NCAA rules limiting how much each member school can compensate athletes for academic-related costs violated antitrust law. Law school clinics are run by practicing attorneys who are paid by the law school—not the athletic department—and who oversee and teach law students. These students learn through the direct experience of helping clinic clients, whose interests are protected by attorney-client privilege.
While law schools are parts of universities that are NCAA members, a law school’s system of legal education is governed by the American Bar Association, which could object to interference in the delivery of legal education.
NCAA prohibitions on NIL could also run afoul of state NIL statutes. These statutes generally make it illegal for colleges to limit NIL opportunities unless those opportunities conflict with school contracts or university policies. To the extent a school interprets the guidance as a requirement to remove NIL services already provided to its athletes, an athlete could explore potential legal claims under a state NIL statute.
The NCAA’s newest clarifications, which follow several others, also invite questions about the NCAA’s capacity and willingness to enforce NIL rules. To date, the NCAA has not punished a school for NIL activities, despite criticisms about collectives and payment of athletes that appears driven more by recruitment than by athlete marketability. To the extent the NCAA remains hands off on NIL, schools might not be deterred by the NCAA’s words.