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NCAA’s Draft Constitution Embraces NIL, Passes Rulemaking to Conferences and Institutions

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One of the nine principles detailed in the new draft constitution from the NCAA focuses on name, image and likeness, stating that student athletes cannot be compensated for participating in a sport but should be able to “receive educational benefits and benefit from commercialization through use of their name, image and likeness.”

From there, it’s left up to each division to decide how to address NIL, with more authority passed down to conferences and institutions to create rules. That likely means we won’t get more guidance from the NCAA on NIL beyond the current interim rules. Here’s how each level breaks down…

NIL at the Division Level

“Each division shall establish regulations to ensure consistency among member institutions regarding the use of a student-athlete’s name, image or likeness and to prevent exploitation of student-athletes or abuses by individuals or organizations not subject to the authority of the student-athlete’s school.”

NIL at the Conference Level

“Each conference shall maintain written policies for its licensing, marketing, sponsorship, advertising, and other commercial agreements that may involve use of a student-athlete’s name, image or likeness. Each conference shall provide such policies to student athletes and to their respective division.”

NIL at the Institutional Level

“Each institution shall maintain written policies for its licensing, marketing, sponsorship, advertising and other commercial agreements that may involve the use of a student-athlete’s name, image or likeness. Each institution shall provide such policies to student-athletes and to its respective conference and division.”

Tracker: Institutional NIL Policies

What does this mean for NIL?

Although we didn’t get any new specifics–or “guardrails” as the NCAA previously called them–it does seem obvious from the wording that the NCAA is leaving the more detailed rulemaking to the conferences and institutions. The language at the division level only talks about protecting student athletes from abuse or exploitation.

Meanwhile, the language used at the conference and institutional level mentions “licensing, marketing, sponsorship, advertising, and other commercial agreements,” suggesting it should be up to conferences and institutions to tackle the establishment of any guardrails. Not surprising given the NCAA’s 9-0 defeat in front of the Supreme Court in the Alston case earlier this year. By pushing the substantive rulemaking onto conferences and institutions, the NCAA is doing what it can to protect itself from antitrust challenges around limitations on NIL.

Author

  • Kristi A. Dosh is the founder of BusinessofCollegeSports.com and has served as a sports business analyst and contributor for outlets such as Forbes, ESPN, SportsBusiness Journal, Bleacher Report, SB Nation and more. She is also the author of a book on the business of college football, Saturday Millionaires. Kristi is a sought-after consultant and speaker on topics related to the business of college sports and a former practicing attorney. Click to learn more

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