Eleven months after the NCAA lifted most of its restrictions on athletes profiting from fame, college sports leaders are trying to send a warning to schools and boosters they believe have crossed a line: there still exists. rules here and they will be enforced.
But in the wake of last year’s Supreme Court ruling against the NCAA in an antitrust case, is a crackdown on so-called collectives negotiating name, image and likeness deals still likely – even possible?
“I didn’t think (the NCAA) wouldn’t try at some point,” said Maddie Salamone, sports attorney and former Duke lacrosse player. “That’s why many lawyers have given careful advice on what is permitted and prohibited. Especially in relation to collectives and the various NIL agreements.
The NCAA Division I Board of Directors on Monday approved guidelines developed by a group of college athletic administratorsclarifying the types of NIL payments and recall involvement that should be considered recruiting violations.
“Specifically, the guidelines define a booster as any third-party entity that promotes an athletics program, assists with recruiting, or helps provide benefits to recruits, registered student-athletes, or their family members,” the release reads. the NCAA. “The definition could include ‘collectives’ set up to channel name, image and likeness deals with potential student-athletes or registered student-athletes who may be considering transferring.”
The NCAA added a reminder: recruiting rules prohibit boosters from recruiting or providing benefits to prospects.
The guidelines are effective immediately. NCAA law enforcement personnel have been instructed to look for possible violations that may have occurred prior to May 9, 2022, but to “pursue only actions that are clearly contrary to published interim policy, including including the most serious breaches of recruitment rules or payment for sporting performance. ”
The NCAA has neither changed its rules nor created any new rules.
“I don’t think they’re even necessarily clarifying the rules,” said attorney Darren Heitner, who helped craft Florida’s NIL law. “I understand it was just some people who put together a working committee deciding that after almost 11 months we want to enforce our rules.”
The rise of recall-funded collectives prompted the board in February to ask the DI Council to review the NCAA’s interim NIL policy. The concern among many others in university sport was that collective payments are made to high school recruits and varsity athletes in hopes of getting them transferred to a particular school.
“Some things are a lot like pay-for-play,” Salamone said. “There are rules in the NCAA books regarding boosters. The fact that the NCAA was hesitant to enforce anything, I think, encouraged a lot of people around this issue to be a little more obvious.
Last year, the NCAA lifted its longstanding ban on athletes who make money through endorsement and sponsorship deals. What remained in place, however, were three pillars of the NCAA amateur athlete model:
— Athletes could not be paid just to practice their sport;
— The compensation could not be used to attract an athlete to a particular school;
– Financial arrangements must have a quid pro quo type agreement where the athlete was paid for services provided, such as a social media post or appearance.
The NCAA has not prohibited boosters from being involved in NIL activity. However, without detailed NCAA rules and with differing state-level NIL laws across the country, schools and the association are struggling. to determine which activities were prohibited.
Some state laws also prohibit boosters from engaging with recruits, but there has been little appetite for enforcement of these laws.
If the NCAA starts targeting certain collectives, it could trigger a new round of lawsuits against the association.
Mit Winter, a sports attorney in Kansas City, Mo., said the NCAA’s enforcement of these rules is not a gross violation of antitrust laws.
“So the question is, under antitrust law, is the rule that’s applied reasonable?” said winter. “And from my reading of everything, the rule that they’re going to enforce is the rule that says boosters and other third parties like collectives can’t pay athletes in exchange for a commitment to a school.”
Heitner advises several collectives and companies that have entered into NIL agreements with college athletes. He said he urged clients early on to wait until athletes were at their chosen school before getting involved.
“I don’t think it’s a collective problem,” he added. “I think it’s just a question of the NCAA saying, ‘Hey, we’ve always been of the view that boosters can’t influence athlete decision-making, especially high school athletes who haven’t still enrolled in universities.
Gabe Feldman, director of sports law at Tulane, said the NCAA would be best served by being forward-looking with its NIL app.
“I think that’s probably a safer and probably fairer approach,” Feldman said. “Hindsight is 20/20, but what could have been an even better approach was to have developed clear rules earlier and to start enforcing them so as not to arrive at a situation where it could be unfair to start enforcing the rules.”
College athletic conferences and the NCAA have been frequent targets of lawsuits, and the Supreme Court’s ruling last June left the door open for even more..
Feldman said the NCAA could open itself up to greater antitrust exposure by failing to enforce its existing rules. But antitrust prosecutions and NCAA enforcement are notoriously slow.
“It would be capable like the tortoise and the tortoise,” Feldman said. “None would be done quickly, but there are a lot of risks in the meantime.”
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