NCAA Releases Updated NIL Guidance to Member Schools
On October 26, 2022, the NCAA Division I Board of Directors published new guidance clarifying how schools can be involved with the name, image, and likeness (NIL) activities of enrolled student-athletes. Since the NCAA’s initial release of their NIL Policy on July 1, 2021, the Board has issued additional guidance in May 2022 and two Q&As in November 2021 and July 2022. The recent guidance provides a non-exhaustive list of permissible and impermissible conduct and divides involvement by schools into four categories: (1) Institutional Education and Monitoring, (2) Institutional Support for Student-Athlete NIL Activity, (3) Institutional Support for NIL Entity/Collective and (4) Negotiating, Revenue Sharing and Compensating.
Institutional Education and Monitoring
With respect to education and monitoring, the NCAA stated that schools can and should provide educational resources—specifically as it pertains to financial literacy, taxes, entrepreneurship and social media—to enrolled and prospective student-athletes as well as to collectives and boosters. Additionally, the NCAA noted that schools should require that student-athletes report their NIL activities to the athletic department, if permitted by state law. The NCAA did not explicitly identify any impermissible conduct as it pertains to educational and monitoring activities.
Institutional Support for Student-Athlete NIL Activity
The NCAA addresses what schools can and cannot do as it pertains to supporting student-athlete NIL activity. The guidance makes clear that, while a school can notify student-athletes of NIL opportunities, they cannot develop, execute or implement a student-athlete’s NIL activity unless the same benefit is made available to all students. The guidance includes a non-exhaustive list of permissible activities, including, administering a “marketplace” that matches student-athletes with NIL opportunities, providing NIL entities the contact information of student-athletes and introducing student-athletes to NIL representatives. Impermissible activities include providing student-athletes services (e.g., tax preparation, contract review, etc.) or access to equipment (e.g., cameras, computers, etc.) to support NIL activity, unless the benefit is available to all students. Further, schools are prohibited from communicating with NIL entities regarding a student-athlete’s compensation or encouraging an NIL entity to fulfill a student-athlete’s request.
Institutional Support for NIL Entity/Collective
Under the new guidance, school staff can support NIL entities by providing them with donor contact information and assets (e.g., tickets, suites), facilitating meetings with donors and even assisting with raising money. However, schools are prohibited from donating cash to NIL entities, incentivizing donors to fund an NIL entity or allowing athletic department staff to be employed by an NIL entity.
Negotiating, Revenue Sharing and Compensating
The NCAA’s guidance makes clear that schools, staff and staff-owned companies cannot be involved with negotiating or compensating student-athletes for NIL activities. This includes representing student-athletes in NIL deals, entering into contracts with student-athletes for the sale of NIL-related products and compensating student-athletes for promoting an athletic competition. Additionally, coaches may not compensate a student-athlete for promoting a coach’s camp.
First year associate Marisa McConnell contributed to this advisory.