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NCAA NIL proposals may not survive battles with state laws

Last week, the NCAA Division I Council introduced several proposals aimed at bringing transparency to the transactions and oversight of those who want to work with student athletes.

At its core, these proposals aim to provide more structure to a system running largely without detailed rules. Since the name, image and likeness interim policy was initially implemented in June 2021, college athletes can use their personal brand to make profit through commercial promotion.

According to the NCAA, the proposals include the creation of a voluntary registry for NIL service providers, such as agents and financial advisors; requirements for disclosure of NIL deals worth more than $600 by athletes to their universities; development of a standardized NIL contract and education programs for both high school prospects and college athletes.

In terms of infractions, the proposal also includes penalties and stricter punishments for individual rule breakers. The council also OK’d the creation of a public database of coaches with a history of Level I and II infractions to publicly identify individuals involved in major violations.

These proposals come at a good time and will hopefully support student-athletes seeking NIL deals as federal legislation is paused in the committee.

The NCAA was criticized for years before NIL’s passing for taking advantage of student-athletes by using their name, image and likeness for profit but not allowing the athletes themselves that right.

As of now, NIL is largely dictated by state laws, but universities in states without NIL laws are governed by university guidelines.

According to the NCAA, the patchwork of state laws has created inconsistencies and a lack of transparency that has made it almost impossible for the NCAA to enforce rules prohibiting NIL being used as an improper recruiting inducement or pay for play.

According to Forbes, states have even began passing laws that prohibit the NCAA from enforcing its NIL rules. The association’s legal ability to enforce its rules is still up for grabs as NCAA guidelines directly conflict with some state laws already in effect.

A uniform approach to the system is what’s in order to ensure corruption remains at bay. If states are allowed to continue with their own NIL legislation, it could encourage an increase of athletes to a specific state with looser NIL regulations, thus serving as an improper recruiting inducement of sorts.

Several states, including Arkansas, Oklahoma and Texas, have passed laws that conflict with NCAA rules, largely relating to booster and business-driven organizations that have formed to pool resources and NIL opportunities for athletes at various schools.

In Texas, schools such as University of Texas, Austin, and Texas A&M said they are planning to provide priority points to fans who donate to NIL funds — such points will help the fans get better tickets at home games or have preferred access to tickets to bowl games or postseason events. The NCAA said Tuesday that this kind of incentive to donate to an NIL fund is a violation of its rules. These provisions, among others, have sent the NCAA and its member schools and conferences to Washington, D.C., to lobby Congress to pass federal legislation.

What we’re at risk for here is a lawsuit. NIL expert attorney Kennyhertz Perry said that should the NCAA actually penalize a school for its rules, the school would likely sue the NCAA, thus triggering a ruling that would cement the state laws vs. NCAA regulations squabble.

It will be interesting to see how the NCAA’s proposal will converse with the aggressive state laws when they go into effect as soon as January. How this plays out will determine who gets to decide NIL legislation, potentially triggering an increase in movement toward schools, like Texas, with increased NIL programming.

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