Today’s guest columnist is Josh Lens, an assistant professor of recreation and sport management at the University of Arkansas.
The NCAA’s interim NIL policy, while mostly permissive, contains some restrictions, such as its prohibitions on NIL arrangements serving as recruiting inducements or pay-for-play. Questions and confusion surround the application and enforcement of these restrictions, however.
The NCAA has released guidance on enforcing its NIL policy, and it recently adopted a guilty-until-proven innocent standard for violations of its NIL restrictions. But this new presumption of guilt created even more uncertainty.
As part of its shared governance structure, the NCAA requires member universities to self-monitor their staff and student-athletes’ compliance with NCAA rules—including the interim NIL policy. In fact, the Committee on Infractions (COI), which adjudicates allegations of NCAA rules violations, can cite and sanction a university for failing to monitor its compliance with NCAA recruiting rules, for example, in a case involving recruiting violations. The COI could do the same for failing to monitor compliance with the interim NIL policy.
While effective NIL compliance monitoring is an additional burden that likely falls largely on athletics compliance administrators, it’s crucial for multiple reasons. First, it can increase the likelihood that athletes, staff, boosters and collectives comply with the restrictions, which is increasingly important given the NCAA’s guilty-until-proven-innocent standard and repeated threats to punish violators. Further, in the event of a violation of the NCAA’s interim NIL policy, effective monitoring mitigates the likelihood of a separate failure to monitor violation, which would result in additional sanctions. While coaches and administrators publicly yearn for the NCAA to enforce its NIL restrictions, they do not want to serve as its example.
In a forthcoming Boston University Law Review Online article, I identify all of the NCAA’s NIL-related restrictions on athletes, university staff and universities, and suggest how universities can monitor compliance with them. For example, the NCAA’s October 2022 NIL guidance clarified that universities may not permit athletes to promote NIL arrangements while participating in their respective sport. Because of other NCAA rules regulating student-athlete participation in practices and games, compliance administrators likely already have monitoring systems in place, such as systematically dropping by practices and requiring coaches and student-athletes to submit and review practice logs. Thus, the article suggests that compliance administrators alter their current practice spot-checking and logging systems to include monitoring compliance with the NCAA’s interim NIL policy, including its prohibition on student-athletes promoting NIL activities during practices and games.
A suggestion to assist compliance administrators monitor the restriction on using NIL as a recruiting inducement is to require athletes to complete a form inquiring about the role, if any, NIL played in their decision to attend or return to their university. If the information in the forms raises any red flags, compliance administrators could follow up accordingly. Compliance administrators at many universities already meet individually with high-profile athletes to fulfill education and monitoring responsibilities; they could use those occasions to conduct additional educating and monitoring regarding NIL restrictions.
The NCAA and its enforcement staff have been quick to proclaim they will enforce NIL restrictions. Their actions, including hiring additional enforcement staff members devoted specifically to NIL and adopting a guilty-until-proven innocent standard for violating NIL restrictions, suggest they will eventually follow through with their threats. They have yet to meaningfully do so, however.
While some have described the recent infractions case involving the University of Miami as the first NIL violations case, the COI did not explicitly identify any violations of the NCAA’s interim NIL policy in it. Instead, the Miami case centers on violations of NCAA recruiting rules. More specifically, it pertains to impermissible involvement of an individual the COI classified as a booster in the recruitment of two prospective transfer student-athletes. (The individual has since stated publicly he will file a lawsuit challenging the booster categorization.)
In its written decision adjudicating the Miami case, however, the COI went out of its way to include three paragraphs at the outset that included mention of “NIL-adjacent conduct.” Thus, the Miami case perhaps serves as a reminder or warning shot to universities and their boosters and collectives to comply with NCAA NIL restrictions.
Josh Lens, a former attorney and college athletics administrator, is an assistant professor of recreation and sport management at the University of Arkansas. In addition to his academic duties, Lens consults for college athletics conferences and university athletics departments on legal and NCAA matters.