In response to frustrations over pay-for-play deals masquerading as NIL, the NCAA now “presumes” an infraction “if circumstantial information suggests that one or more parties engaged in impermissible conduct.” The approach should better detect disallowed NIL payments, but it will likely be challenged under federal antitrust law and state NIL statutes.
The NCAA adopted Bylaw 19.7.3, titled “Violations Presumed in Select Cases,” last October and it became effective on Jan. 1. Presumption of an infraction through circumstantial evidence means that direct evidence that wrongdoing occurred—such as an admission or a witness statement—is not required. A suspicious social media post or a journalist’s investigative story that raises questions could suffice.
Relying on circumstantial evidence might seem unfair, but it is used in both criminal and civil trials. Further, as a private entity, the NCAA lacks investigatory powers enjoyed by the government. The NCAA has no subpoena power, it can’t compel individuals to testify or turn over evidence and witnesses who agree to talk aren’t under oath.
Under the new bylaw, an accused school or individual has the burden to “clearly demonstrate with credible and sufficient information that all communications and conduct surrounding the name, image and likeness activity complied with NCAA legislation.” This standard places a high bar on the accused, who must not only show, but “clearly demonstrate” through records—some of which, such as contracts or emails, could contain personal or proprietary information—that the deal is about NIL, not pay-for-play.
In other words, while the NCAA can rely on circumstantial evidence to make an accusation, the accused likely needs direct evidence to establish their innocence.
Whether the NCAA will rigorously enforce this bylaw remains to be seen, although the organization has repeatedly warned it would police NIL but, to date, hasn’t taken accompanying action.
Still, the bylaw has drawn skepticism from those familiar with NCAA practices.
“It appears this ill-conceived legislation came about when the NCAA finally realized that it doesn’t have the ability to enforce the NIL rules within the framework of the current system,” Tom Mars, a longtime sports attorney and former member of the NCAA’s complex case unit, told Sportico. Mars, whose clients have included Justin Fields, Houston Nutt and Bret Bielema, said the bylaw should be added to what he terms a “growing list of mindless missteps which make the NCAA even more punchable than the one before.”
A credible argument that the bylaw deprives the accused of due process exists, but that argument likely wouldn’t advance in court. Although many NCAA’s member universities are public, which means they must adhere to the Constitution, the NCAA is not obligated to do the same in NIL investigations. That’s because the Supreme Court deemed the NCAA a private entity in the 1988 decision NCAA v. Tarkanian, ruling that UNLV’s enforcement of NCAA rules at the association’s request “did not transform them into state rules.”
That doesn’t rule out a federal antitrust lawsuit, which Ed O’Bannon and Shawne Alston used to successfully challenge restrictions on NIL and athlete benefits. Antitrust is relevant since NCAA rulemaking comes at the behest of member schools that are competing businesses. Section I of the Sherman Act makes it illegal for competing businesses to join hands in unreasonably restraining competition.
By deeming circumstantial evidence sufficient for a presumption of guilt, the new policy makes it more likely NIL activity will run afoul of NCAA rules. That might scare away NIL business if athletes and schools (and their boosters) are worried about prospective NCAA punishments. To the extent the NIL’s economic market is “injured,” an athlete could argue the NCAA has violated antitrust law. The NCAA would insist the new policy is a reasonable measure to combat NIL as pay-for-play, but the NCAA also thought the policies O’Bannon and Alston challenged were reasonable. The courts didn’t agree.
An antitrust lawsuit over NIL isn’t theoretical. One is already occurring. House v. NCAA, which centers on the NCAA and its members denying NIL (until 2021) and broadcast revenue, is before the same judge who ruled for O’Bannon and Alston.
State laws may also provide obstacles to the new NIL policy. Take the one in Mississippi. Like those in other states, Mississippi’s statute forbids athletic associations with authority over intercollegiate sports from preventing college athletes from earning NIL compensation or preventing them from playing sports if they earn NIL compensation. The statute also bars colleges from upholding any “rule, regulation [or] standard” that blocks NIL compensation. While the NCAA’s new bylaw doesn’t forbid NIL compensation, it could chill NIL deal making which would result in the same outcome: denial of NIL.
One thing is certain: the more the NCAA restricts economic opportunities for college athletes, the more likely its legal headaches will continue.