Tuesday December 5, 2023

Reconsidering NIL Governance

  • The first NCAA constitution draft asked that divisions write consistent NIL “regulations.”
  • But the second draft asked only that divisions write "guidelines," a potential legal necessity.
Photo: Robert Deutsch-USA TODAY/Design: Alex Brooks
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The first draft asked that divisions write consistent NIL “regulations.” But that may not be possible.

The new draft tempered the language, asking divisions to provide only suggestions. It states: “Each division shall establish guidelines regarding student-athlete benefits, including commercialization of name, image or likeness.”

As usual, the change is necessary in order to keep the NCAA from baiting a lawsuit.

  • The Alston decision implied it would be illegal for the NCAA to institute association-wide NIL rules. That also might apply to the division level. 
  • Both legal experts and NCAA members have acknowledged this roadblock.
  • In a press conference after the Constitutional Convention, NCAA President Mark Emmert said that the members would have to make sure that every aspect of the constitution “comports” with the Alston decision. 

And even if division-specific NIL regulations were legal, they still might not make sense logistically.

During the Constitutional Convention, at least two Power 5 conference executives noted that different NIL state laws would make it impossible to create blanket regulations for schools in different states.

Now, the governing body is back to square one. It’ll have to wait for Congress to pass a federal law.

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