On January 3, 2023, the NCAA Transformation Committee finally released its official 39-page document, giving recommendations for how they envision the future of Division 1 sports. Such proposals included but were not limited to the following:
Expanding March Madness, for both men and women, to around 90 total teams
Requiring every D-1 establishment to provide health insurance for all injuries related to athletic participation while in college and two years after graduation
Allowing each sport to self-govern
However, while such a report mentioned NIL, it never set standards. The NCAA has stated that with NIL, they need a "clear, stable framework under which to address them... and Congress is the only entity that can grant that stability." Thus, in the wake of the report and for guidance regarding NIL, Institutions, Student Athletes, Prospective Student-Athletes, and NIL entities will turn to the NCAA's updated guidelines published in October 2022.
On October 26, 2022, the NCAA released an updated guideline regarding "Institutional Involvement in a Student-Athlete's Name, Image, and Likeness Activities." Such a guideline builds off the interim policies adopted by the NCAA on July 1, 2021, and the question-and-answer document released by the NCAA in November 2021. Accordingly, while the revised guideline is not exhaustive, there are some critical policy updates within it.
Institutional Education and Monitoring
Under the updated guideline, all Student-Athletes' NIL activities must be reported to the NCAA. Additionally, educational sessions (I.e., Taxes, financial literacy, social media, entrepreneurship, etc.) for Student Athletes, NIL Entities, Boosters, and Prospective Student-Athletes are permissible. Accordingly, no activities have been identified as impressible under the "Institutional education and monitoring" section of the guideline; however, that is subject to change.
Institutional Support for Student-Athlete NIL Activity
Permissible activities under the revised guideline include but are not limited to the following: Engaging NIL entities to inform Student-Athletes of NIL opportunities; Engaging NIL entities to administer a marketplace that matches Student-Athletes with NIL opportunities without the involvement of their Institution; Providing Student-Athletes information about opportunities that their Institution is aware of; Providing NIL entities with Student-Athlete's contact and other directory information; Providing stored photo/video/graphics, or stock to Student-Athletes or NIL entities; Introducing Student-Athletes to representatives of NIL entities; Arranging for a NIL entity and Student-Athlete to meet in institutional facilities and/or on campus; Promoting NIL activity, provided there is no value or cost to the Institution (i.e., retweeting or liking a social media post); Promoting Student-Athlete's NIL activity on paid platforms, provided the Student-Athlete or NIL entity is paying going rate for the advertisement (I.e., NIL entity pas for an advertisement on the video board); and purchasing items related to a Student-Athletes NIL deals that are de minimis in value and for the same rate available for the general public.
However, there are also impermissible acts under the aforementioned guidelines, including but not limited to the following: Communicating with NIL entities regarding specific Student-Athlete requests/demands for compensation or encouraging NIL entities to carry out Student-Athlete requests; Proactively assisting in the development/creation, execution or implementation of a Student Athlete's NIL activity (i.e., developing products, developing promotional materials, ensuring Student-Athletes performance of contractual NIL activities) unless the same benefit is generally available to the Institution's students; Providing services (other than educational services) to support NIL activity unless the same benefit is generally available to the Institution's students; Providing access to equipment to support NIL activity further unless the same benefit is generally available to the Institution's students; and allowing Student-Athletes to promote their NIL activity while on call for required athletically related activities (I.e., press conferences, celebrations, practices, pre- and post-game activities).
Institutional Support for NIL Entity/Collective
Under the NCAA's current NIL guideline, institutions supporting a NIL entity are authorized to: Allow staff members to assist a NIL entity in raising money for itself (i.e., donating autographed items & appearances at fundraisers); Provide assets to a NIL entity under a sponsorship agreement, provided that access to the assets are available to and on the same terms, as other sponsors; Request donors to provide funds to a NIL entity (without directing funds to be used for a specific sport or Student-Athlete); and provide donor information or facilitate meetings between a NIL entity and donor.
In contrast, institutions supporting a NIL entity are prohibited from: Subscribing to the entity and subsequently donating cash to the entity, regardless of whether funds are designated for a specific sport or Student Athlete; Providing assets to a donor as an incentive for providing funds to a NIL entity; and allowing athletic department staff members to be employed by the NIL entity.
Negotiating, Revenue Sharing, and Compensating
While the NCAA does not specify permissible activities for negotiating, revenue sharing, and compensating; the NCAA does provide a list of activities that entities, coaches, staff members, institutions, and/or departments are proscribed from: Athletic department staff member (or company owned by a staff member) representing enrolled Student-Athletes for NIL deals (including securing and negotiating deals on behalf of the Student-Athlete); Acting on behalf of the athletics department representing enrolled Student-Athletes for NIL deals; Entering into a contract with a Student-Athlete for the sale of product related to the Student-Athlete's NIL; Conference and Student-Athlete revenue sharing, including but not limited to, Broadcast revenue and NIL revenue; Staff members who own a business separate from the Institution, entering into NIL deals with a Student-Athlete; Compensating a Student-Athlete to promote a coach's camp; and Student Athletes receiving compensation directly or indirectly from promoting an athletics competition in which they participate in.
Ultimately the hope is that the NCAA can continue to make strides and provide further guidance in the ever-evolving NIL space.
Brandon Blumer is a 2L law student at New York Law School. You can connect with him via https://www.linkedin.com/in/brandonblumer.