While Monday’s Supreme Court ruling in the Alston antitrust case was not about college athletes’ ability to make money from their name, image and likeness, it is having a significant impact on NCAA Division I schools’ consideration of changes to their rules about those activities.
The schools have had a package of proposals since November that would, on a national basis, significantly enhance athletes’ opportunity to have endorsement deals, leverage their social-media followings in other ways and get paid for signing autographs or giving lessons — but with certain restrictions.
Now, there is a new proposal that has been offered by the Atlantic Coast, Pacific-12 and Southeastern conferences that would largely leave it up to individual schools to develop their own rules about athletes’ name, image and likeness (NIL) activities. Both proposals were set to be discussed Tuesday and Wednesday during meetings of the NCAA Division I Council, the division’s top day-to-day policy-making group, which currently is scheduled to vote on rules changes at another meeting Monday.
"Because of (Monday’s) ruling, this is evolving as we go,” a person familiar with the Council’s deliberations told USA TODAY Sports. The person spoke on the condition of anonymity due to the sensitive nature of the topic. "There's a healthy dialogue that will continue not only tomorrow, but throughout the week. We're looking for what is the best bridge from now to, hopefully, federal legislation that doesn't trigger any antitrust issues.
"Inside counsel and outside counsel are taking a look with a sharper pencil and a more concise lens. There are going to (be) adjustments (to the proposals). The only thing that's off the table is a do-nothing option."
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Eight states have passed laws that will allow athletes to make money from their NIL beginning July 1 or whenever their schools choose, and NCAA President Mark Emmert has been adamant that the association must find a solution for athletes in states without such laws. The Council had been set to vote on proposals Tuesday or Wednesday, but that plan was delayed over the weekend because the members did not want to take action until after the Supreme Court weighed in.
Now, the discussions come in the wake of a unanimous ruling that the NCAA’s rules on athlete compensation are subject to detailed antitrust analysis, and such an analysis showed that the association’s limits on education-related benefits for athletes violate the law.
Two lawyers, one speaking to USA TODAY Sports and another during a webinar held by a Division I athletics’ directors group, said Tuesday the ruling makes it prudent for the NCAA to take an approach to NIL rules changes that is different from the one in the November package.
“Accommodation, accommodation” of the athletes’ NIL activities, Peter Carfagna, a sports law expert and adjunct member of the University of Miami’s Law School faculty, advised during the webinar held by LEAD1. “I'd rather switch than fight again. I think that is clear.”
Gabe Feldman, director of the Tulane Sports Law Program and Tulane University's associate provost for NCAA compliance, went a step farther. From an antitrust perspective, there is a difference between the NCAA having NIL rules that would apply nationally and rules that would apply on a school-by-school or even a conference-by-conference basis, since there would be competitive risk involved in school or conference decisions to adopting rules athletes did not like.
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As such, Feldman, who was not involved with or consulted on the new NIL proposal, said: “The safest way to proceed for the NCAA is to allow the conferences or schools to make their own rules. And regardless of how restrictive the conference or school rules are, they are unlikely to violate antitrust law because no individual conference or school has sufficient power in the market to harm competition. …
“If the NCAA were concerned about the antitrust risk of new NIL legislation two days ago,” Feldman said, “they're even more concerned now because of the Supreme Court's ruling. Any rule the NCAA agrees to regarding NIL compensation, even if it is very permissive, could still be subject to attack under antitrust law. … Really the only entity left that can provide (the NCAA) protection under antitrust law is Congress.”
The NCAA has been asking Congress to provide a measure of such protection as part of a law that would override the states’ NIL laws, which differ with each other and, in some cases, with NCAA rules. But with some Senators demanding that a bill also provide new health and other benefits for athletes, progress has been slow.
That leaves the Division I Council with a need to act. The new proposal, first reported on Sunday by ESPN, would make explicit that any state NIL laws would take precedence over NCAA rules. In states without NIL laws, each school would make its own NIL policies, provided those policies not allow payments from “any booster, or any person or entity acting on behalf” of the school, according to a copy of the proposal obtained by USA TODAY Sports.
But even that restriction would come with risk for the NCAA.
“That specific issue will be one of the most discussed,” said the person familiar with the Council’s deliberations. “That’s where there’s a whole new Pandora’s Box.”
Follow colleges reporter Steve Berkowitz on Twitter @ByBerkowitz
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