Just days before the NCAA is scheduled to consider landmark legislation to allow college athletes to monetize their name, image and likeness, there have been conversations among college presidents, conference officials and athletic administrators about delaying the vote until there’s more clarity about federal government action.
Though the NCAA’s Board of Governors created a mandate on Oct. 29, 2019 to put new name, image and likeness rules in place “no later than January 2021,” there are three primary reasons why the NCAA might now punt on the issue until later this year according to nine people with knowledge of the discussions. Six of those people spoke on the condition of anonymity because they were not authorized to do so publicly.
The first reason would be the Supreme Court’s decision last month to hear the NCAA’s appeal of a 9th U.S. Circuit Court of Appeals ruling that the NCAA cannot limit benefits related to education that college athletes can receive.
The second involves uncertainty about what kind of bill Congress might vote on to regulate name, image and likeness issues, the scope of which could change given the results of the runoff elections in Georgia on Tuesday that will flip the Senate from Republican to Democratic control this session.
The NCAA is facing an uncertain year as the issue of name, image and likeness comes to a head. (Photo: Keith Srakocic, The Associated Press)
And the third factor driving a potential delay is simply a lack of detail given to NCAA membership about how a third-party clearinghouse would function to vet name, image and likeness deals signed by athletes to ensure they are not de facto recruiting inducements.
“Several conferences are pushing back,” one person with knowledge of the discussions said. “Not even sure presidents know if it will actually be voted on.”
Delaying the vote at next week's annual NCAA convention could create significant public backlash for the association and president Mark Emmert, who told the Senate Judiciary Committee during a hearing in July that “work is underway in each of our divisions to ensure a new NIL (name, image and likeness) policy will be adopted in January 2021 and take effect for the 2021-22 academic year.”
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The NCAA unveiled details of the proposed NIL rules in November. While those changes would give athletes new and significant abilities to make money from their name, image and likeness and other activities, the proposals include restrictions that would conflict with versions of NIL laws that have been passed by states including California and Florida, which have created the most pressure for the NCAA.
California’s law, signed by Gov. Gavin Newsom in September 2019, was the first and would cover dozens of schools across multiple conference. Florida’s law is set to take effect July 1, which adds urgency to the situation.
But there’s growing conviction among the NCAA membership that it might not make sense to ratify these changes before knowing how the Supreme Court will rule and seeing which of the four bills introduced during the last six months of the just-concluded session of Congress will be reintroduced and which will gain traction with legislators and the incoming Biden administration.
“If we do pass legislation and now say, ‘These kids can, you know, make money outside of their amateurism, is that going to affect what the Supreme Court does?” Kansas State athletics director Gene Taylor said. “So I don't know if they're going to pass anything. If they do, I think it's going to be much more narrow even than what they have on the table potentially, or they may just come out with a resolution. There's just real concern that there's too many moving parts right now.”
Tom McMillen — a former Congressman who now serves as president and CEO of the LEAD1 Association, a group representing Football Bowl Subdivision athletics directors — said he did not know whether a vote on new NIL proposals would be delayed, but he added: “I would not be surprised” if the NCAA delayed action.
“I've raised the question with them: How can they pass legislation given the state, federal uncertainties?” McMillen said, referring to three other states that have passed NIL laws and others, including Texas, where legislators have filed or plan to file bills this year. “You know, the only choice is to pass it and put the effective date way out there, but … there may be some litigation risk there. It's a tricky issue. I just think they're kind of between a rock and a hard place because Congress is not getting to this any time soon. I mean, the ramp-up of COVID is just taking all the air out of the Congress. … I personally don't see it till later this year."
It is likely that the Supreme Court will hear arguments in the appeal in March or April and then rule by sometime in June.
The proposed changes to the NCAA’s name, image and likeness rules are scheduled to be on the agenda for Monday’s meeting of the Division I Council and Thursday’s meeting of the Division I Board of Directors. The Council is a 40-member panel comprised mainly of athletics administrators, including conference commissioners and athletics directors. The Board has 24 members, nearly all of whom are university presidents or chancellors.
Any action taken by the Council is not considered final until it also has been approved by the Board.
But a decision by the Council to delay action could essentially be overridden by the Board.
The package of NIL proposals includes one that would require athletes to disclose their NIL activities to what is described as “an independent third-party administrator.” Last September, the NCAA issued request for proposals from firms interested in serving in this capacity and initially said the contract would be awarded Nov. 20. That award has not yet made.
“How are you going to do this, so it doesn't become a recruiting inducement – that was the one thing that I haven't really gotten clarification on and I think is an important clarification, Arkansas State AD Terry Mohajir said. “Who's the third party? What's the third party doing? How are they running it? What's their involvement? Is it going to be housed in the NCAA? Is it just going to be a third party? How are they going to decide whether it's a recruiting inducement or not?”
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