Name, Image and Likeness Scouting Report, Week 5: Conference and Member School NIL Policies Proliferate, But Enforcement Remains ‘Blurry’

Faegre Drinker Biddle & Reath LLP

The academic calendar has turned to October as athletic conferences and their member institutions attempt to deal with athletes’ growing expectations about name, image and likeness (NIL) opportunities. The tsunami created by the Supreme Court’s unanimous midsummer decision in Alston v. NCAA,1the rapid modification of the NCAA’s long-standing opposition to NIL,2and the already steady flow of state laws granting NIL rights to student athletes — as well as imposing prohibitions upon conferences, colleges and universities interfering with athlete NIL rights3— has brought a certain amount of chaos to collegiate administrators, coaches and athletes who are all trying to navigate the new and evolving NIL playing field.

Forced to game-plan their own approaches with membership-wide applicability, conferences have engaged in an administrative “two-minute drill” to issue NIL policies. Although most of the attention this time of the year focuses on the 10 Football Bowl Subdivision (FBS) conferences and the 14 Football Championship Subdivision (FCS) conferences, they are the tip of the iceberg. More than 145 conferences are members of the NCAA. Therefore, it is no surprise that conference policies vary, and any business contemplating a promotional deal with a student athlete must be aware of the athlete’s relevant conference policy and the guardrails that determine how a deal may be crafted within that specific conference.

Conference NIL Examples: The Ivy League vs. The Big 10

Given the state of flux in conference NIL policies, no resource currently offers a comprehensive analysis of all 145 conference NIL policy initiatives. However, to illustrate the potential for key differences, our comparison focuses on two Division l conferences: The Ivy League (FCS)4and the Big Ten (FBS).5

The Ivy League permits student athletes to participate in NIL opportunities. The conference issued an initial July 1, 2021 press release6announcing that Ivy athletes may participate in NIL activities, subject to state law and school institutional policies, but honoring foundational NCAA and Ivy League prohibitions on pay-for-play and impermissible recruiting inducements. The brief announcement concluded by urging Ivy student athletes “to be patient and prudent as these first-time experiences become available, because this is an evolving and complex situation.” Ivy League athletes did not have to wait long for additional guidance. Accompanying the NIL policy statement, the conference released a temporary guidance document which endorses the new NCAA policy and lists a half-dozen tips for students engaging in NIL activities.7

Given the lack of detailed NIL conference guidelines, Ivy athletes have considerable freedom to engage in NIL ventures. However, Ivy athletes generally lack the same level of name recognition as athletes in larger conferences. What kind of businesses may value sponsorship deals with Ivy athletes? In addition to marketers that target goods and services to Ivy League alumni, the Ivies may be fertile recruiting ground for businesses that target consumers in less nationally popular niche sports, such as lacrosse, sailing, skiing and squash.

Something that sets the Ivy League apart from other Division l conferences is the fact that member schools are not allowed to give athletic (or academic) scholarships. Financial aid packages are need-based and determined solely by their students' individual family financial situations. As a result, theoretical NIL opportunities may be of even greater value to an Ivy athlete and may help to level the playing field with other conferences. But any meaningful opportunities may precipitate downward adjustments to a student’s financial aid package — an outcome that may weigh more heavily on Ivy League athletes than those in other conferences which receive athletic scholarships which are unaffected by NIL earnings.

The brevity of the Big Ten’s approach to NIL rights8is not dissimilar from the Ivy League’s initial NIL statement but differs in three respects. First, it provides substantial praise for the NCAA’s NIL efforts. Second, it announces that the conference and its member institutions will work together over “several months” to adopt a meaningful NIL policy. Finally, after paying tribute to the conference’s academic foundation, it concludes by endorsing a level playing field which can only be achieved by national rules.9

While the Big Ten’s NIL policy development efforts remain to come sometime in the next “several months,” it is estimated that the Big Ten — without a definitive policy yet — leads all other conferences (yes, including the SEC) in total NIL compensation and activity.10

Big Blue vs. Big Green

While athletic conferences struggle to adopt meaningful NIL policies, their member schools have been engaging in their own administrative “hurry-up offense” to publish policies tailored to their own individual needs, but which also need to be consistent with limited NCAA, state law and conference guidance. This is an important task because NCAA member institutions have the closest daily contact and influence with their student athletes.

A quick survey of selected schools indicates that the NCAA’s more than 1,100 member institutions (with more than 500,000 student athletes) have generally made greater and more specific strides in adopting NIL policies than their conference governing bodies.11Again, as the number of institutions suggests, those individual approaches vary. Therefore, any business contemplating a promotional deal with a student athlete must ensure compliance with a school’s specific policies and guidelines for an athlete’s exploitation of their NIL rights, and the school’s specific requirements, restrictions and prohibitions.

For example, consider the experience of the Big Ten’s University of Michigan and the Ivy League’s Dartmouth College. Both schools share rich academic and athletic traditions, and both were prepared to issue NIL compliance policies that were much more detailed than those of their respective conferences within hours of July 1, 2021 NIL kickoff. There are differences and similarities in each school’s approach.

The State of Michigan has a law on college athletes’ publicity rights, but it does not take effect until Dec. 31, 2022.12Nevertheless, the University of Michigan did not ignore the state NIL law and adopted a policy that would not directly contradict the rules set down by state lawmakers. The Athletic Department’s Initial Policy Release also specifies certain activities Big Blue athletes can pursue to monetize their name, image and likeness. These include traditional commercials or advertisements for products or services, developing and promoting their own business, personal appearances, sponsored social media posts and autograph sessions.13However, there are a number of restrictions incorporating and going beyond the state law. These include a key prohibition on student athletes’ use of the University’s name, trademarks, service marks, logos, symbols or any other intellectual property without appropriate licensing approval. Student athletes also cannot profit from activities "that may harm the reputation of the institution." The policy lists several products or services (such as gambling, adult entertainment and tobacco) that Michigan athletes are prohibited from promoting. Athletes also cannot engage in any NIL opportunities during "organized team activities," which include practice, competition, team travel, team-organized media appearances and team or university promotional events. And athletes are not allowed to "sell or trade any equipment, apparel, awards or complimentary admissions provided to them by the Michigan Athletic Department"14for NIL opportunities. Michigan's policy also requires that athletes submit their NIL opportunities to the compliance department at least seven days prior to entering into a NIL activity to ensure that the activity does not violate the policy. A disclosure template is attached to the policy.

Unlike Michigan, Dartmouth College is in a state (New Hampshire) without a NIL law. With no state legal framework present or pending, Dartmouth enjoyed more freedom in formulating an NIL policy than Big Blue as only the NCAA interim NIL policy provided the school with applicable guidance. However, despite this latitude, the Big Green’s selected approach did not differ substantially from Michigan’s policy announcement.

Dartmouth responded to the changing NIL landscape by releasing a multipage collection of Name, Image and Likeness FAQs.15Like Michigan, Dartmouth identifies similar NIL activities that athletes may engage in, as well as those that are off-limits (e.g., gambling and performance enhancing drugs). Like Michigan, potential NIL activities must be disclosed to the Athletic Department at least 14 days before they are to occur. But here, Dartmouth’s approach tries to thread a different needle — the review is not being done to approve or disapprove NIL arrangements; prior disclosure is intended to allow the Athletic Department to help the student determine if the NIL opportunity conflicts with NCAA, Ivy League or Dartmouth policies.

What are both the Michigan and Dartmouth policies lacking? At this time, the NCAA, the Big Ten and Ivy League conferences, as well as both Michigan and Dartmouth, lack specifics regarding consequences for NIL policy violations. In that regard, the new NIL playing field remains, in the words of one Power Five top-10 football team’s head coach , “blurry as hell.”16

Violation Consequences

We have nearly arrived at the halfway mark of this year’s college football season, and rumors of NIL violations are beginning to find their way into conversations among college football fans. What will happen if any of these “Wild West” rumored violations prove to be true? The spirit of the NIL initiatives strongly suggests that a violator should lose their athletic eligibility. But who will be the “referee?” And will there be any uniformity in declaring violators ineligible?

There are at least four possible referees in town: The NCAA, state attorneys general, the athlete’s conference and the athlete’s school. The separation of the NCAA from an individual athlete and the extended duration of NCAA investigations suggests its enforcement apparatus would not be an appropriate or effective mechanism for enforcement of specific state, conference and school NIL policies on an individual athlete level, particularly for students ending their collegiate competitive careers (whether one and done or a fourth or fifth year student). In the instance of a NIL transgression which implicates a state law violation, is it realistic to assume that an Alabama attorney general would act to sanction a Crimson Tide quarterback on the eve of a conference championship game against Georgia? Conferences may become valuable enforcers, but that possibility awaits the formal adoption and publication of detailed conference NIL policies which will only occur some point in the future, as well as procuring staffing and resources for a broad enforcement endeavor. For the moment, this leaves the athlete’s university or college as the best placed and suited enforcer through its compliance personnel; however, it is also the entity closest to the possible violation. How will the investigation proceed, and what will really happen to a violator in the absence of specific consequences for violations? Quoting Oklahoma football coach Lincoln Riley again, these outcomes no doubt can and will be “blurry as hell.”

Consider these hypotheticals:

  • Suppose a star quarterback at “State” sells a “game worn” jersey in violation of State’s policy prohibiting the sale of any items provided to the athlete by the school. Would State declare all athletes that engage in such activity ineligible? Or will the QB be treated differently?
  • Assume that the violation is discovered before State’s opportunity to play in its conference championship game. Does State immediately act to declare their starting QB ineligible for the game? Suppose State does and wins the game anyway and moves on to the FBS Playoffs. Is the QB ineligible to play the remainder of the season or for just the one game?
  • Assume again there is a violation of State’s policy. Does State terminate the QB’s eligibility immediately, or does State simply make the QB ineligible to start the first game of the next season?
  • Is an athlete who violates a school NIL policy and declared ineligible able to enter the transfer portal and become newly eligible at another school?

For the moment, we will have to wait and see how a NIL-specific enforcement mechanism develops, and how consistent these mechanisms are for a myriad potential of violations across states, conferences and schools. Will enforcement (or lack of enforcement or consistent enforcement) be another impetus for national NIL legislation or NCAA rules? As the old sports adage says, “this is why they play the games.”

FOOTNOTES

  1. Name, Image and Likeness Scouting Report, Week 2: How Did We Get Here? From the Hope Diamond to NCAA v. Alston
  2. Name, Image and Likeness Scouting Report, Week 3: What's Next for the NCAA?
  3. Name, Image and Likeness Scouting Report, Week 4: The States Quarterback NIL Change 
  4. These schools are known for their long-standing traditions in intercollegiate athletics, often being the first schools to participate in such activities.
  5. The history of the Big Ten traces back more than 125 years to the Palmer House hotel in Chicago, where on January 11, 1895, Purdue invited leaders from the University of Chicago, University of Illinois, University of Michigan, University of Minnesota, Northwestern University and University of Wisconsin to organize and develop principles for the regulation of intercollegiate athletics.
  6. https://ivyleague.com/news/2021/7/1/general-ivy-league-permits-student-athlete-name-image-and-likeness-opportunities.aspx
  7. https://gocrimson.com/documents/2021/7/1/NIL_Student_Resource_Ivy_League_July_2021.pdf?id=6894
  8. https://bigten.org/sports/2019/10/31/GEN_1031195710.aspx
  9. The Big Ten Conference and its member institutions will review and discuss these recommendations over the next several months as we work together to determine what new rules should be proposed for approval. We believe that education is the foundation of the collegiate model, that it is our first priority and that it must continue to be so if the model is to be sustainable on our campuses. We believe that our students who participate in intercollegiate athletics are students, not employees. We also believe that our students who participate in intercollegiate athletics are not professional athletes, that they are not paid to play their sports and that any payment for name, image or likeness cannot be used as a substitute for compensation related to athletic performance or participation. We also believe that whatever rules are adopted in this area, in order to allow for a national system of recruiting, competition and fair play, must apply nationally. Our collegiate model cannot be sustained if the rules are applied on a state-by-state basis.”  Id. 
  10. https://www.newsbreak.com/news/2366432989324/nil-conference-by-conference-breakdown-in-total-compensation-since-july-1
  11. For example, each of the Big Ten’s 14 conference schools has adopted a NIL policy of some sort while the conference itself remains in the midst of a “several months” journey to adopt its own detailed NIL policy.
  12. http://www.legislature.mi.gov/documents/2019-2020/publicact/pdf/2020-PA-0366.pdf.
  13. https://mgoblue.com/documents/2021/7/1/name_image_likeness_policy.pdf
  14. The prohibition on the sale of equipment or apparel furnished by the University is a not so subtle reference to previous NCAA violations at Big Ten rival Ohio State. Those violations, nationally known as “tattoo-gate,” involved more than 20 players who received free tattoos in exchange for Ohio State game-worn pants, jerseys, shoes, and other memorabilia all provided to them by the athletic department.
  15. https://dartmouthsports.com/documents/2021/8/19//Name_Image_and_Likeness_Q_A.pdf?id=16737
  16. https://www.si.com/college/oklahoma/football/oklahomas-lincoln-riley-nil-will-be-a-good-thing-but-it-comes-with-red-flags (“Listen, some of those lines are still blurry as hell. Let’s just call it what it is. They are. Hopefully at some point, we get a standard set of rules and all this state-to-state business goes out the window.”)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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