The NCAA NIL Memo: Breaking Down the Implications for NCAA Athletic Programs
Today's Friday Feature focuses on the NCAA's effort to create NIL standards in member institutions, and the legal implications of such.
The Substance of the Memo
In late June Stan Wilcox, the NCAA executive vice president of regulatory affairs, sent a memo to participating schools directing them to follow NCAA NIL rules over state rules. The Memo stated that any school that violates NCAA rules could be punished . . . however, this threat may not hold as much weight as it seems.
The substance of the memo attempts to form a clear standard: NCAA rules above any others. The NCAA maintained that if state law permits certain actions and NCAA legislation prohibits the same one, institutions must follow the NCAA legislation. Furthermore, the Memo outlines other specifics: boosters cannot meet with prospective student-athletes to persuade them to attend a school based on NIL deals, NIL deals cannot mandate students to live in a certain area or attend a certain school, and event sponsors are not allowed to pay a NIL collective in order for a specific team to compete in events. (link)
The Legal Weight of the Memo
In essence, the NCAA memo suggests that member schools should disregard the legislative authority of state laws for NCAA NIL rules. While this instruction is not an issue for some member institutions, others, such as those in Arkansas, Texas, and Oklahoma will have to make the decision to abide by the looser state laws or the NCAA rules.
Looser NIL laws are beneficial for states like these in which “football is king.” Through looser NIL laws states can drag higher-profile recruits out of state, which in states where football success is a key cultural column, could result in political gain for state lawmakers.
That said, several Texas universities have publicly announced that they will continue to follow their NIL state laws. The Texas schools could face certain punishments for choosing to disobey the NCAA’s memo, however, the NCAA does not have much power. As Matt Brown, a publisher of Extra Points explained:
“They don’t want to be sued for breaking state law, they don’t want to be sued for breaking antitrust law, so all they can do is write memos and hope they can scare people into compliance…”
Brown continues on to explain why the NCAA and other conference commissioners are asking the federal government for a NIL law that would supersede state laws. Without one, there isn’t any sort of enforcement mechanism that the NCAA can use. Because of this, Brown’s suggestion is to follow the state law. In his view, if you are a public university and the state is giving you all the money to operate, you should follow state laws- the NCAA doesn’t have subpoena power. (link)
Future Implications
The views from experts in the field vary: either this will finally lead to Congressional involvement, or not.
According to some, because of the lack of power that the NCAA holds, Congress is unlikely to find that this is something to get involved with. This view may hold in the short term, but in the long term, it seems more likely that congressional intervention between the states and the NCAA may be needed.
The lack of any substantial conflict now between states and the NCAA does not mean that there will not be conflict in the future. This memo from the NCAA is just another notch in the side of the NIL tree, which combined with others, will eventually need congressional support to stay standing. The federal government has managed to stay out of NIL regulations thus far, however, with more and more developments such as this one, there will be no choice but to get involved.
Have you checked out OSC’s website?
Head to www.OptimumSportsConsulting.com to find important resources and features relating to all things NIL. These resources include State by State Resources for Admins, Agents and Athletes, including our initial “OSC Summaries” for over a dozen states coming soon.
More to come too, including links to helpful state information- agency laws and information about school policies, as well as seminar/congressional notes, worksheets, and much more!