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The Legal Brief

NCAA Approves New Guidance for Player Endorsements

October 28, 2022

By: Joshua A. Claybourn

The NCAA’s Division I Board of Directors approved new guidance on name, image, and likeness activities. The guidelines, approved on October 26, 2022, clarify how and when schools, coaches, and staff may be involved with athletes’ endorsement and sponsorship deals. Technically, the NCAA did not approve new rules. Instead, the NCAA issued guidance intended to clarify the existing NCAA policy.

“The NIL landscape is constantly evolving, and the Board of Directors decided it was important to offer further guidance with respect to a number of key questions that have arisen recently,” said Georgia President Jere Morehead, chairman of the D-I board. “As we continue to reinforce current NCAA rules, we expect to offer further guidance in the future on what should and should not be done when engaged in these activities.”

School support for student-athlete NIL activities

Schools cannot be involved with sourcing, negotiating, or facilitating NIL deals for student-athletes. And any services related to NIL deals, such as legal review of contracts, can only be provided if the school makes those same services available to the entire student body.

Schools may (and generally should) provide educational services—how to build a brand as well as financial literacy, taxes, social media practices, and entrepreneurship. Under existing NCAA rules, schools may inform student-athletes about potential NIL opportunities and can work with an NIL service provider to administer a “marketplace” that matches student-athletes with those opportunities. But schools may not engage in negotiations on behalf of an NIL entity or a student-athlete to secure specific NIL opportunities.

Schools may also support athletes in NIL activities by providing stock photos or graphics to either a student-athlete or an NIL entity, or by arranging space on campus for an entity and student-athlete to meet. Schools may not, however, provide free services (graphic designers, tax preparation, or contract review) to student-athletes, unless those services are available to the general student body, nor may schools offer equipment (cameras, graphics software, or computers) to student-athletes to support NIL activities, unless that equipment is also available to the general student body.

The latest guidelines also clarify that schools may promote student-athletes’ NIL activities as long as the student-athlete or NIL entity pays the going rate for that advertisement (for example, on a video board during a game). However, schools may not allow student-athletes to promote their activity while participating in required athletics activities (pre- and postgame activities, court celebrations, and news conferences).

School involvement with collectives and NIL entities

With increasing opportunities for schools and their staff to mix with NIL entities, the NCAA sought to provide further guidance in this sphere as well. School personnel (including coaches) may assist an NIL entity with fundraising through appearances or by providing autographed memorabilia, but such staff may not donate cash directly to those entities. School staff members also may not be employed by nor have an ownership stake in an NIL entity.

Schools may request that donors provide funds to collectives and other NIL entities, but schools cannot request that those funds be directed to a specific sport or student-athlete. And although schools may provide tickets or suites to NIL entities through sponsorship agreements, the terms of those agreements must be the same for other sponsors. In other words, school assets may not be offered as an incentive to provide funds to an NIL entity.

NCAA enforcement

The NCAA will review any violations occurring prior to the new guidance on an individual basis, but will only pursue cases that are clearly contrary to the interim policy. But the board also unanimously adopted new allegation and conclusion standards when potential violations related to the policy occurs. When information available to the enforcement staff indicates impermissible conduct occurred, the enforcement staff and Committee on Infractions will presume a violation occurred, unless the school clearly demonstrates that the behaviors in question were in line with existing NCAA rules and the interim NIL policy.

Schools also must adhere to state laws regarding NIL compensation for athletes. Dozens of states have NIL laws, some that already prohibit schools from facilitating deals for athletes.

 

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