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NCAA clarifies compensation rules but is crackdown likely?

In this March 18, 2015, file photo, the NCAA logo is displayed at center court as work continues at The Consol Energy Center in Pittsburgh, for the NCAA college basketball tournament.

Eleven months after the NCAA lifted most of its restrictions against athletes cashing in on their fame, college sports leaders are trying to send a warning to schools and boosters it believes have crossed a line: There are still rules here and they will be enforced.

But following last year's Supreme Court ruling against the NCAA in an antitrust case, is a crackdown on so-called collectives brokering name, image and likeness deals still likely — or even possible?

“I didn't think (the NCAA) would not try at some point,” said Maddie Salamone, a sports attorney and former Duke lacrosse player. “That's why many attorneys have been kind of giving cautious advice in terms of what is and is not allowed. Especially when it comes to collectives and different NIL deals.”

The NCAA's Division I Board of Directors on Monday approved guidance developed by a group of college sports administrators, clarifying the types of NIL payments and booster involvement that should be considered recruiting violations.

“Specifically, the guidance defines as a booster any third-party entity that promotes an athletics program, assists with recruiting or assists with providing benefits to recruits, enrolled student-athletes or their family members,” the NCAA release said. “The definition could include ‘collectives’ set up to funnel name, image and likeness deals to prospective student-athletes or enrolled student-athletes who might be considering transferring."

The NCAA added a reminder: Recruiting rules bar boosters from recruiting or providing benefits to prospects.

The guidance is effective immediately. NCAA enforcement staff was directed to look for possible violations that might have occurred before May 9, 2022, but "pursue only those actions that clearly are contrary to the published interim policy, including the most severe violations of recruiting rules or payment for athletics performance.”

The NCAA neither changed its rules nor created new ones.

“I don’t think they’re even necessarily clarifying the rules,” said attorney Darren Heitner, who helped craft Florida's NIL law. “My understanding is this is just certain individuals who have made up a working committee deciding that after almost 11 months we want to enforce our rules.”

The rise of booster-funded collectives prompted the board in February to ask the DI Council to review the NCAA's interim NIL policy. The concern among many in college sports has been that payments from collectives are being made to high school recruits and to college athletes in hopes of getting them to transfer to a particular school.

“Some things look very much like pay-for-play,” Salamone said. “There are rules on the books within the NCAA around boosters. The fact that the NCAA has been hesitant to enforce anything I think has emboldened a lot of people around this issue to be a little bit more obvious.”

Last year, the NCAA removed its longstanding ban against athletes earning money from sponsorship and endorsements deals. What remained in place, however, were three pillars of the NCAA's amateur athlete model:

— Athletes could not be paid solely for playing their sport;

— Compensation could not be used to lure an athlete to a particular school;

— Financial arrangements must have some type quid pro quo agreement in which the athlete was being paid for services provided, like a social media post or appearance.

The NCAA did not ban boosters from being involved in NIL activity. However, without detailed NCAA rules and with state-level NIL laws differing across the country, it left both schools and the association struggling to determine what activities were impermissible.

Some state laws also prohibit boosters from engaging with recruits, but there has been little appetite for enforcement of those laws.

Should the NCAA start targeting some collectives it could trigger a new round of lawsuits against the association.

Mit Winter, a sports attorney in Kansas City, Missouri, said NCAA enforcement of these rules is not a clear-cut antitrust violation.

"So the question is, under antitrust law, is the rule that’s being enforced reasonable?" Winter said. “And from my reading of everything, the rule that they’re going to be enforcing is the rule that says boosters and other third parties like collectives cannot pay athletes in return for a commitment to a school.”

Heitner advises several collectives and businesses that have made NIL deals with college athletes. He said he has stressed to clients from the start to wait until athletes are at the school of their choice before getting involved.

“I don’t think it’s a collective issue,” he added. “I think it’s just a matter of the NCAA saying, ‘Hey, we’ve always been of the position that boosters cannot influence decision making of athletes, particularly high school athletes who have not yet enrolled at universities.’”

Gabe Feldman, the director of sports law at Tulane, said the NCAA would be best served being forward-looking with its NIL enforcement.

“I think that probably is a safer and probably more fair approach,” Feldman said. “Hindsight is 20/20, but what might have been an even better approach is to have come up with clear rules earlier and started enforcing those so we didn’t get to a situation where it might be unfair to start enforcing the rules.”

College sports conferences and the NCAA have been frequent targets for lawsuits, and last June's Supreme Court ruling left the door open for even more.

Feldman said the NCAA could be opening itself up to more antitrust exposure by failing to enforce its existing rules. But both antitrust lawsuits and NCAA enforcement are notoriously slow moving.

“This would be able like the tortoise and the tortoise,” Feldman said. “Neither would get done quickly, but there’s a lot of risk in the interim.”

Comments

Dirk Medema

I’d agree with attorney Darren Heitner, I don’t think they’re clarifying the rules. At this point it seems like empty words. Just wait til your father gets home. At one time that carried some weight, but now dad’s working late and the kids will be in bed. Maybe on the weekend? They definitely need new leadership and followership.

Financial arrangements must have some type quid pro quo agreement. How much does an actor/social media person make for commercials/endorsements?

1 week, 1 day ago

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Rodney Crain

Dirk, followership? How often do you use that in a sentence, other than today? Quid pro quo, did you watch Silence of the Lambs over the weekend?

There is no way the NCAA has the bandwidth or the depth to police agreements between two private citizens. They are dependant on someone else, like the Miami Herald, to alert them of what is going on at any school. The NCAA made a knee jerk reaction last year with no guidelines setting the stage for the bidding wars that seem to be happening in basketball and football. Add to that unlimited free agency in college sports via the portal and you get the perfect storm for chaos. Since congress, and some states, have no interest in creating laws, even to protect the athletes, what did anyone expect would happen? The only thing that should surprise anyone is that anyone is surprised.

Since we are using movie quotes today, Two men enter (into a NIL agreement) and one man leaves (the team they used to play for). Dangle that much money in front of someone and it makes since for Pack to take his talents to Miami.

Really the only question is who will play Mark Emmert in the limited TV series on HBOMAX. I am thinking the title of the show should be "Show Me The Money! The downfall of College Athletics".

1 week, 1 day ago

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Micky Baker

The transfer portal combined with the NIL is a disaster for college athletics. At least in professional sports you have to wait a period of time to become a free agent. I would say that if a player wearing a uniform get's a deal, then the deal should be made null and void if that player transfers to another college to play. I think the portal needs to be done away with, that the NIL contracts should not be used to get players to go to certain schools out of high school and they can only be made after playing one season in college. Otherwise, it's going to be massively corrupt. One other thing is that colleges should not be allowed certain credits to be transferred just because they want this player in one of their athletic programs. Credit transfer rules need to be the same for student athletes as they are for all other students transferring.

1 week, 1 day ago

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Clarence Glasse

Micky, I like it! Very well said. You get my vote!

1 week ago

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Robert Robinson

Man its scary to think of what college sports are going to look like in 10 years. Eventually, schools arent going to have to pay or even tell recruites about how much money they can make if they come to their program. If a player cant decide between Kansas or Oklahoma State, all he has to do is check out the players Instagram or whatever crap the kids are using then. He might see KU players driving brand new cars and OSU players driving beat up dodge pickups. Pretty obvious which school hes going to pick. Kids in 10 years wont just be looking at coaches, facilities and how they fit on a team, theyll be looking at the market and how much money than can make

1 week ago

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Rodney Crain

Off topic, but I thought it was funny that in my shiny new Load the Wagon magazine-like-book, on the 2022 Championship that Case thinks we need an updated pregame video for home games. The video guy now a coach wants a new video from the video guy. I agree it should be updated but it was it was amusing for him to point it out.

1 week ago

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Michael Leiker

Rodney, had a guy suggest on the golf course the other day that video should end with Wilt saying "Rock Chalk Jayhawk" in that deep voice...thought that was a cool idea.

1 week ago

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Sae Thirtysix

Dream the other night - of missing the days when Comrade would quote statistics from web searched, algorithm driven, fatalism of the virus. Awoke in joyful glee it was only a dream. Sure glad NIL and portal don’t require masking or vaxing.

1 week ago

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Spencer Goff

If I knew the transfer portal combined with NIL was a time bomb, how did Mark Emmert not?

How is it his tenure lasted longer than Myles Brand?

He’ll blame the schools, but if the schools are that against any alleged changes he proposed (be real, he proposed none, he just drew a paycheck and said athletes were amateurs) then why have him/NCAA at all?

This has been a boat at sea with nobody at the helm for over a decade. It took awhile but it finally ran aground.

1 week ago

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