By Paul V. Kelly & Taylor M. Kosakoff, of Jackson Lewis
The NCAA Division I Board of Directors has approved new guidance clarifying how schools can engage with student-athletes in the constantly evolving name, image, and likeness (NIL) arena on their campuses.
The NCAA first implemented the Interim NIL Policy on July 1, 2021. In November 2021, the NCAA released a Q&A document, which declared that schools could not use NIL transactions to compensate student-athletes nor dictate how students use their compensation. In May 2022, the Board released additional guidance specifying that institutional coaches and staff may not arrange a meeting between an NIL entity and a prospective student-athlete nor communicate with a prospective student-athlete on behalf of the NIL entity. The May 2022 guidance did not specifically extend this prohibition to involvement with NIL activities for currently enrolled student-athletes.
The latest guidance, approved on October 26, 2022, clarifies how schools can interact and support enrolled student-athletes’ NIL activities. Schools are encouraged to provide educational training to current student-athletes on such topics as financial literacy, taxes, entrepreneurship, and social media practices. According to the guidance, these educational programs also can be provided to collectives, boosters, and prospective student-athletes.
With respect to supporting student-athlete activities:
- Schools are allowed to: administer a marketplace that matches student-athletes with NIL opportunities; arrange space for NIL entities and student-athletes to meet on campus or in school facilities; and promote student-athlete NIL activity on paid platforms, provided that the student-athlete or NIL entity is paying the going rate for the advertisement.
- Schools are not allowed to: communicate with NIL entities regarding specific student-athlete requests or demands for compensation; assist proactively in the implementation of a specific student-athlete’s NIL activity; and provide a student-athlete access to equipment, unless the same benefit is generally available to the institution’s students.
With respect to supporting NIL entities and collectives:
- Schools are allowed to: assist NIL entities in raising money for those entities; provide assets (e.g., tickets) to NIL entities under sponsorship agreements if those assets are available to other sponsors; encourage donors to provide funding to NIL entities if they are not directed to a specific sport or student-athlete; and facilitate meetings between donors and NIL entities.
- Schools are not allowed to: subscribe to nor donate cash to the NIL entity; provide assets to a donor as an incentive for providing funds to the NIL entity; and allow athletics department staff members to be employed by an NIL entity.
Further, schools are not allowed to engage in certain negotiating, revenue sharing, and compensating activities, including:
- Allow staff members to represent enrolled student-athletes for NIL deals; enter into contracts with the student-athletes for the sale of products related to NIL deals; engage in student-athlete revenue sharing; and allow coaches to compensate student-athletes to promote the coach’s camp.
Any violations that occurred prior to this guidance will be reviewed by the Board and be pursued only if the infractions are clearly contrary to the Interim Policy.
