NCAA Division I Council Approves Interim Name, Image And Likeness Policy Which Places Additional Burdens On Conferences And Schools

Jackson Lewis P.C.

In its ongoing reaction to the recent unanimous Supreme Court decision in NCAA v. Alston finding the NCAA in violation of federal antitrust laws, the NCAA Division I Council has voted to support the interim name, image and likeness (NIL) policy provided below. The NCAA Board of Directors will now consider the policy and vote on the potential adoption of the policy on Wednesday, June 30.

“If adopted by the Board of Directors, the interim policy will become effective on July 1, 2021, the same date as numerous NIL laws and executive actions will also become effective (including Alabama, Florida, Georgia, Kentucky, Mississippi, New Mexico, Ohio and Texas).

The NCAA has confirmed that the interim NIL policy will remain in effect until either federal legislation is passed or revised NCAA rules are adopted. The policy will authorize student-athletes in all fifty states to have the opportunity to participate and benefit from the marketing of their name, image, and likeness rights.

The policy, which still states that NCAA Bylaws remain in effect, including restrictions on pay-for-play and improper recruiting inducements, provides very limited guidance and defers decisions on compensation for college athletes to states with their own laws or, in the event no such state law is in effect, the policy requires individual conferences and their schools to draft and implement their own NIL policies. These policies must be consistent with NCAA Bylaws as well as applicable federal and state laws.

“Despite more than eighteen months of NCAA discussion and its presentation of various proposals, the NCAA has now shifted the burden, requiring conferences and schools to react on an extremely expedited basis to the July 1st effective date for the NCAA policy.

The text of the NCAA’s proposed Interim Policy is as follows:

Interim NIL Policy

The NCAA is committed to ensuring that its rules, and its enforcement of those rules, protect and enhance student-athlete well-being and maintain national standards for recruiting. Those goals are consistent with the NCAA’s foundational prohibitions on pay-for-play and impermissible recruiting inducements, which remain essential to collegiate athletics.

As the NCAA continues to work with Congress to adopt federal legislation to support student-athlete use of NIL, it is necessary to take specific, short-term action with respect to applicable NCAA rules. Accordingly, effective July 1, 2021, and until such time that either federal legislation or new NCAA rules are adopted, member institutions and their student-athletes should adhere to the guidance below.

  1. NCAA Bylaws, including prohibitions on pay-for-play and improper recruiting inducements, remain in effect, subject to the following:
  • For institutions in states without NIL laws or executive actions or with NIL laws or executive actions that have not yet taken effect, if an individual elects to engage in an NIL activity, the individual’s eligibility for intercollegiate athletics will not be impacted by application of Bylaw 12 (Amateurism and Athletics Eligibility).
  • For institutions in states with NIL laws or executive actions with the force of law in effect, if an individual or member institution elects to engage in an NIL activity that is protected by law or executive order, the individual’s eligibility for and/or the membership institution’s full participation in NCAA athletics will not be impacted by application of NCAA Bylaws unless the state law is invalidated or rendered unenforceable by operation of law.
  • Use of a professional services provider is also permissible for NIL activities, except as otherwise provided by a state law or executive action with the force of law that has not been invalidated or rendered unenforceable by operation of law.

2. The NCAA will continue its normal regulatory operations but will not monitor for compliance with state law.

3.  Individuals should report NIL activities consistent with state law and/or institutional requirements.

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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