NIL Update, Kicking the Can | 2aDays

NIL Update, Kicking the Can

Those of us paying attention to the college athlete name, image, and likeness conversation will have to wait a little longer for updates—today, the NCAA decided to delay its decision on whether or not it will amend its NIL and one-time transfer policies moving forward. Here are a few reasons why the NCAA might have decided to kick the can.

  1. Last Monday, the Justice Department sent the NCAA a warning letter that indicated the NCAA’s proposals will likely violate antitrust law by unduly restricting the free market activity of college athletes. Although the Justice Department’s involvement sounds serious, keep in mind that this is not a lawsuit—it’s just a warning. Still, the DOJ’s comments are likely a contributing factor in the NCAA’s decision to delay its vote.
  1. The College Athlete Bill of Rights will likely be re-introduced by New York Senator Corey Booker later this month or early in February. Booker’s federal-level bill is arguably the most liberal piece of NIL legislation in history, advocating for not only largely unrestricted NIL use, but revenue-sharing, enhanced health and safety measures, and better academic support for college athletes, among other useful (and long-overdue) proposals. However, the bill is competing with several other federal-level NIL bills that are more restrictive and thus, likely easier for universities to implement. The flurry of proposed legislation might also be a contributing factor in the NCAA’s decision to delay its policy vote—any federal bill that goes into effect automatically trumps NCAA policy, so the NCAA might want to wait and see how the federal courts rule on NIL rather than do the work itself. 
  1. The Supreme Court will review NCAA v. Alston this spring, which could affect the NCAA’s decision-making in the future. Although the Alston case isn’t specifically about NIL (it addresses the NCAA’s right to cap the educational benefits of college athletes), it carries significant implications for NCAA policymaking. The SCOTUS ruling will be an indication of 1.) the legality of the NCAA’s NIL policies and future proposals in terms of antitrust compliance, and 2.) the legal influence of the NCAA as an institution. If SCOTUS rules in favor of the NCAA, expect stringent NIL regulations in the future and a possible antitrust exemption. If SCOTUS rules against the NCAA, the NCAA could lose influence in determining NIL guardrails, and the legality of its current policies under antitrust law could come into question, which would open doors for looser regulations in the future.

As usual, the landscape of NIL policies at both the NCAA and federal level are murky, and lots of variables could change in a short amount of time, as Florida’s state-level NIL bill, which goes into effect this July, has put some time pressure on these policies—or the NCAA could kick the can again, like it’s been doing for decades. For now, keep up with 2aDays for more updates on NIL and other NCAA policies. 

Katie Lever is a former Division 1 athlete and current doctoral student at the University of Texas, where she studies NCAA discourse (but she isn’t a lawyer, so her articles do not constitute legal advice). Follow her on Twitter/Instagram for more policy updates: @leverfever. 

* Originally published on January 18, 2021, by Katie Lever, M.A.

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