NEW NCAA Bylaw 19.7.3: “In cases involving name, image and likeness offers, agreements and/or activities in which related communications and conduct are subject to NCAA regulation, the infractions process shall presume a violation occurred if circumstantial information suggests that one or more parties engaged in impermissible conduct. The enforcement staff may make a formal allegation based on the presumption. The hearing panel shall conclude a violation occurred unless the institution or involved individual clearly demonstrates with credible and sufficient information that all communications and conduct surrounding the name, image and likeness activity complied with NCAA legislation.”
Why did the NCAA change the standard of review and how does it work?
In October of 2022, the NCAA introduced and passed a new standard of review for investigating and alleging rules violations relating to NIL. The legislation went into effect on January 1, 2023, and only governs conduct subsequent to that date. The new rule allows the NCAA Committee on Infractions (COI) to presume a violation took place if there is enough circumstantial evidence to validate the presumption. This change was made due to the difficulty the NCAA’s enforcement staff was having with thoroughly investigating alleged violations of NIL rules.
According to Jon Duncan, the NCAA VP of Enforcement, the NCAA was struggling to collect sufficient evidence to prove violations without the participation and cooperation of boosters and other parties to NIL arrangements. Notably, the NCAA does not have subpoena power and cannot require anyone to speak with them or appear on the record during an investigation. This led to a lack of evidence to allege violations, even though public news reports made it appear that violations had occurred.
Previously, the NCAA enforcement staff could only rely on evidence in the record (evidence collected through their investigation) and had the burden of proving a violation occurred. Now, the NCAA enforcement staff can rely on news reports, other member institutions, and information from sources, amongst other previously inadmissible evidence, to allege a violation. A member institution must then “clearly demonstrate with credible and sufficient evidence” that a violation did not take place for the COI to find that a violation did not occur. Otherwise, the COI will find that violations did occur.
If the NCAA enforcement staff suspects a violation of NIL policy, it will send a member institution a Letter of Inquiry (LOI) and then conduct an investigation. During the investigation, the enforcement staff will conduct interviews and request documents concerning the alleged violation. If the enforcement staff’s investigation shows that the violations presumptively occurred, the enforcement staff will send a Notice of Allegation (NOA) to the institution and any coaches or staff that may have been involved, identifying the information that they believe supports the violation. The member institution would then be responsible for proving that the violation did not occur before the COI.
What is considered a violation under NCAA NIL bylaws?
- An institution’s representatives may not directly or indirectly contact an athlete to discuss NIL deals if they are in the NCAA Transfer Portal
- Anyone representing the athletics interests of a member institution, including collectives and boosters, are prohibited from engaging in NIL-related recruiting activity
- A staff member from a member institution may not offer, guarantee, or discuss an NIL opportunity to an athlete, their family, or representative during the recruiting process
- Anyone representing the athletics interest of a member institution (collective, booster, etc.) may not enter or announce (verbally or in writing) an NIL agreement with a recruit before they are enrolled at the institution
- A NIL collective and/or its representatives may not engage in recruiting activities and/or the promotion of a specific recruit before that recruit is committed to the institution
- NIL agreements may not require a recruit to be “in the area of” the institution before enrollment in order to complete the terms of the agreement (e.g. local appearances)
- Institutional staff members, boosters, or other representatives of the institution may not solicit, facilitate, and/or provide NIL opportunities in exchange for a student athlete to stay enrolled at the institution
What does this mean for me?
Once an athlete has committed to the institution, they may discuss NIL deals with any collectives or booster of that institution. To avoid any NCAA violations, athletes should wait until they are enrolled in an institution before discussing NIL opportunities with the institution. Once the athlete is enrolled at the institution, they may work with the institution to find NIL opportunities, including connecting with boosters and alumni. However, the institution and/or anybody associated with the athletics interests of the institution may not use NIL opportunities to convince an athlete to commit to or stay enrolled at the school. An athlete cannot be required to be “in the area of” the school before their enrollment for the purpose of fulfilling the terms of their NIL contract.
Member institutions should not discuss specific NIL opportunities with recruits, their family, or representatives during the recruiting process until the athlete is enrolled at the member institution. Otherwise, institutions can discuss NIL opportunities that have generally been available to current athletes. If a prospect is entering the NCAA Transfer Portal, the member institution should wait until the prospect does so before contacting the prospect about NIL opportunities. Member institutions may not solicit, facilitate, or provide additional NIL opportunities to convince an athlete to enroll or stay enrolled at a member institution.
Third party representatives (Boosters and Collectives)
Boosters and Collectives and other representatives of an institution’s athletic interests (but not anybody that is a staff member of the institution itself) may start contacting athletes regarding NIL opportunities once the athlete signs with the institution. Before the athlete is signed, third party representatives may not contact the athlete or their family about NIL opportunities conditional on enrolling at a particular university. Third Party Representatives may not solicit, facilitate, or provide additional NIL opportunities to convince an athlete to enroll or stay enrolled at a member institution.
Athletes, institutions, boosters, and collectives should consider working with experienced counsel to ensure compliance with all NIL rules and bylaws.