{"id":6490,"date":"2023-04-17T01:01:03","date_gmt":"2023-04-17T05:01:03","guid":{"rendered":"http:\/\/www.bu.edu\/bulawreview\/?p=6490"},"modified":"2023-04-17T01:01:03","modified_gmt":"2023-04-17T05:01:03","slug":"nil-compliance","status":"publish","type":"post","link":"https:\/\/www.bu.edu\/bulawreview\/2023\/04\/17\/nil-compliance\/","title":{"rendered":"NIL Compliance"},"content":{"rendered":"

Josh Lens<\/a>*<\/span>
\n103 B.U. L. Rev. Online 69 (2023) | PDF<\/a> \u00a0<\/span><\/strong><\/span><\/p>\n

Abstract<\/strong><\/p>\n

The transformative name, image, and likeness (\u201cNIL\u201d) era of college athletics is in its infancy yet one cannot overstate its impact on college athletics. While student-athletes have largely benefited from NCAA rules changes permitting their newfound ability to earn remuneration from their NIL, uncertainty exists regarding the rules and enforcement of them.<\/em><\/p>\n

While the NCAA\u2019s guidelines regulating student-athletes\u2019 use of their NIL are minimalist, they contain some restrictions applicable to student-athletes, university staff members, universities, and universities\u2019 athletics supporters. Despite repeated threats, the NCAA has yet to enforce its NIL restrictions, resulting in confusion and upheaval. NCAA legislation requires universities to monitor their compliance with all NCAA rules, however, and the NCAA will, at some point, enforce its NIL restrictions and penalize those who violate them. Thus, universities must monitor their compliance with NCAA NIL restrictions.<\/em><\/p>\n

Scholars and the national media have written extensively about the NCAA\u2019s NIL restrictions and their effects. Lacking from this discourse, however, is recognition and examination of universities\u2019 responsibility to monitor compliance with the restrictions. This Article fills that void. To do so, Part\u00a0I details the NCAA\u2019s enforcement and infractions processes through which it enforces its myriad rules and explains universities\u2019 efforts, including monitoring, to comply with NCAA rules on their campuses. Part\u00a0II describes the NCAA\u2019s NIL restrictions and suggests reasonable activities that universities should undertake to monitor compliance with them. Doing so would not only fulfill universities\u2019 monitoring responsibilities but help foster compliance with NIL regulations on campuses.<\/em><\/p>\n

 <\/p>\n

Introduction<\/strong><\/p>\n

For decades, the National Collegiate Athletic Association (\u201cNCAA\u201d)[1]<\/span><\/a> strictly enforced its numerous constraints on collegiate student-athletes\u2019 ability to earn remuneration from their names, images, and likenesses.[2]<\/span><\/a> When it eliminated many of these restrictions on July 1, 2021, the NCAA ushered in a new era for college athletics.[3]<\/span><\/a> This transcendent, seismic pivot[4]<\/span><\/a> permitted student-athletes to accept remuneration for endorsements and autographs, for example.[5]<\/span><\/a><\/p>\n

Student-athletes\u2019 newfound freedoms paid off\u2014literally\u2014in the first year of the name, image, and likeness (\u201cNIL\u201d) era.[6]<\/span><\/a> Student-athletes received just under a billion dollars for NIL activities in that time frame, an amount which some expect to increase in the future.[7]<\/span><\/a> On the individual level, nineteen-year old University of Texas football student-athlete Quinn Ewers\u2019 NIL earnings total nearly $4 million, for example.[8]<\/span><\/a> Women student-athletes have also benefited, as evidenced by University of Connecticut (\u201cUConn\u201d) women\u2019s basketball student-athlete Paige Bueckers. Bueckers will miss the 2022-23 women\u2019s basketball season due to a knee injury but will return to play for UConn in 2023-24 in lieu of beginning her professional basketball career, as remaining a UConn student-athlete will provide more lucrative NIL opportunities than available in the Women\u2019s National Basketball Association (\u201cWNBA\u201d).[9]<\/span><\/a> In fact, Bueckers\u2019 array of NIL arrangements will generate more compensation for her than the base salary she would earn as the number one overall WNBA draft selection.[10]<\/span><\/a><\/p>\n

Student-athletes have also utilized their NIL to benefit charitable and community efforts. Among the many examples is University of Iowa football student-athlete Tory Taylor. As an international student, the Australian-born Taylor faces complications and restrictions regarding his ability to earn revenue from his NIL.[11]<\/span><\/a> After verifying that using his NIL to raise money for charities would not negatively impact his standing as an international student, Taylor teamed with local nonprofit Count the Kicks to raise money for its fetal movement awareness campaign.[12]<\/span><\/a> An elite punter, Taylor was a natural fit for an organization that sought to encourage pregnant people to monitor daily kick counting sessions during their pregnancy\u2019s third trimester.[13]<\/span><\/a> T-shirts with the slogan \u201cPunting is Winning\u201d with Taylor\u2019s name and jersey number on the back \u201ceasily has become the most popular among Iowa (football) fans,\u201d with Taylor donating over $11,000 to Count the Kicks from their sale.[14]<\/span><\/a> University of Arkansas football student-athlete KJ Jefferson likewise used his NIL for a good cause, teaming with organizations like the United Way on a social media campaign to raise money for flood victims in Jefferson\u2019s home state of Mississippi.[15]<\/span><\/a><\/p>\n

While the NIL era has resulted in many positives, it has also led to uncertainty, chaos, and a free-for-all.[16]<\/span><\/a> Instead of adopting new bylaws that apply to all member universities, the NCAA instead implemented a minimalist \u201cuniform interim policy\u201d that eliminated NCAA bylaws restricting student-athletes\u2019 monetization of their NIL[17]<\/span><\/a> that had been longstanding.[18]<\/span><\/a> While the NCAA\u2019s interim policy is barebones,[19]<\/span><\/a> it includes some restrictions.[20]<\/span><\/a> The interim policy, for example, \u201cpreserves the commitment to avoid pay-for-play and improper inducements tied to choosing a particular school.\u201d[21]<\/span><\/a><\/p>\n

Rules are only effective if enforced, however,[22]<\/span><\/a> and many college athletics constituents crave enforcement of NCAA NIL restrictions.[23]<\/span><\/a> More than eighteen months into the NIL era, however, its legal and regulatory landscape is unclear.[24]<\/span><\/a> Though the NCAA \u201cbuilt its reason for existence on enforcement,\u201d it has not enforced any of its interim policy\u2019s restrictions,[25]<\/span><\/a> let alone alleged potential NIL violations,[26]<\/span><\/a> culminating in a wild, wild west college athletics climate.[27]<\/span><\/a><\/p>\n

The NCAA has, however, put member universities on notice that it is investigating potential NIL rules infractions[28]<\/span><\/a> with a focus on university staff members and representatives\u2019 behaviors.[29]<\/span><\/a> In fact, NCAA Vice President of Enforcement Jon Duncan recently explained that there a lot of cases involving NIL or NIL adjacent behavior \u201cin the hopper\u201d that will soon see sunshine.[30]<\/span><\/a> Further, the NCAA adopted a guilty-until-proven-innocent standard for potential violations of its interim NIL policy.[31]<\/span><\/a> The NCAA\u2019s recent staff additions likewise suggest it will aggressively enforce its NIL restrictions. In August, the NCAA hired a former CIA Deputy Group Chief and FBI executive leader with decades of cybersecurity, counterintelligence, and strategic communications experience.[32]<\/span><\/a> The NCAA also recently advertised a job opening titled \u201cAssociate Director of Enforcement for Name, Image, and Likeness,\u201d with the position\u2019s primary responsibility including identifying potential NCAA violations.[33]<\/span><\/a> This individual\u2019s tasks will include monitoring and enforcing NCAA rules and guidelines regarding NIL.[34]<\/span><\/a><\/p>\n

With NIL rules enforcement appearing an NCAA priority[35]<\/span><\/a> and potentially facing the guilty-until-proven-innocent standard for violations, universities should follow NCAA NIL regulations and, like all other NCAA rules,[36]<\/span><\/a> monitor their compliance with them. This Article\u2019s aims include identifying both: (1) the NCAA NIL restrictions with which universities must monitor their compliance and (2) suggested activities universities can undertake to effectively monitor compliance with NCAA NIL restrictions. Thus, Part\u00a0I details the current NCAA enforcement process by which the NCAA enforces its myriad rules and describes universities\u2019 efforts to comply with NCAA legislation on campuses. Part\u00a0II describes NCAA NIL restrictions and suggests actions for universities that would satisfy their monitoring obligations and help foster compliance with NCAA NIL guidelines. A brief conclusion follows.<\/p>\n

I. The Current NCAA Division I[37]<\/a> Enforcement and Infractions Processes<\/strong><\/p>\n

The NCAA is \u201cbig, national, the focus of media and public attention, and scrutinized by legislators.\u201d[38]<\/span><\/a> A private association,[39]<\/span><\/a> the NCAA describes itself as \u201ca member-led organization\u201d that consists of over 1,000 colleges and universities.[40]<\/span><\/a><\/p>\n

A ground-up entity,[41]<\/span><\/a> the NCAA derives its authority from its member universities.[42]<\/span><\/a> Through the NCAA\u2019s legislative process, the universities that belong to it propose and adopt rules regarding college athletics and implement them on campus.[43]<\/span><\/a> NCAA legislation, while often complex,[44]<\/span><\/a> attempts to level the playing field for universities competing against each other.[45]<\/span><\/a> Member universities and their staff and student-athletes agree to abide by the rules in exchange for the opportunity to compete in NCAA-sponsored competitions.[46]<\/span><\/a><\/p>\n

The NCAA notoriously does not lack for rules.[47]<\/span><\/a> For example, one NCAA Division I bylaw defines the term \u201cbusiness day[,]\u201d while others regulate when and how often coaches may call or write prospective student-athletes, or even answer incoming calls from them.[48]<\/span><\/a> Thus, college coaches work in an environment controlled by NCAA rules,[49]<\/span><\/a> and the NCAA expects staff members and student-athletes to know and follow its rules.[50]<\/span><\/a><\/p>\n

Rules are meaningless unless enforced, however.[51]<\/span><\/a> The NCAA investigative and penal process through which it sanctions member universities and their staff members for NCAA rules violations is unique,[52]<\/span><\/a> and, like the NCAA itself, the public holds many misperceptions about it.[53]<\/span><\/a> Thus, this Part details the NCAA enforcement and infractions process, hopefully clearing up any misperceptions.<\/p>\n

A. NCAA Enforcement Staff and its Roles in the Infractions Process<\/em><\/p>\n

Universities and staff members that abide by NCAA legislation should not be disadvantaged by doing so.[54]<\/span><\/a> Thus, NCAA member universities created an infractions process to help ensure fair play and integrity among members.[55]<\/span><\/a> One group of NCAA employees in particular bears this responsibility: the Enforcement Staff.[56]<\/span><\/a> The Enforcement Staff is akin to the NCAA\u2019s prosecutor.[57]<\/span><\/a> It is the NCAA entity responsible for reviewing information about potential violations.[58]<\/span><\/a> The Enforcement Staff receives information regarding potential rule violations from many sources, including self-reports and sources.[59]<\/span><\/a> Its investigators must review information regarding potential violations in a \u201cfair, accurate, collaborative, and timely manner.\u201d[60]<\/span><\/a><\/p>\n

If the Enforcement Staff believes information may substantiate violations, it alleges potential Level I or Level II violations, with the former being the more significant of the two.[61]<\/span><\/a> The Enforcement Staff states its allegations in a Notice of Allegations, a formal document directed to the university and involved individuals.[62]<\/span><\/a> The Enforcement Staff bears the burden of proving these violations.[63]<\/span><\/a><\/p>\n

B. Resolution of NCAA Infractions Cases<\/em><\/p>\n

If the Enforcement Staff is the prosecutor of NCAA rules violations, the Committee on Infractions (\u201cCOI\u201d) is the judge and jury.[64]<\/span><\/a> There are currently three means by which an infractions case involving a Division I member university resolves, and all conclude with a Committee on Infractions (\u201cCOI\u201d) decision.[65]<\/span><\/a> Founded in 1954,[66]<\/span><\/a> the COI is an independent administrative body that includes volunteers from NCAA member universities, athletics conferences, former coaches, and individuals from the general public who possess legal training.[67]<\/span><\/a> More specifically, COI panelists\u2019 professional profiles include current and former university presidents, chancellors, athletics directors, conference commissioners, former coaches, attorneys, and professors.[68]<\/span><\/a> Thus, the COI touts the infractions process as \u201cpeer-review[ed].\u201d[69]<\/span><\/a> There are up to twenty-four COI members at any given time, a smaller panel of which considers each case on the COI\u2019s behalf.[70]<\/span><\/a><\/p>\n

One way that an infractions case resolves is through \u201cnegotiated resolution.\u201d This path is available in instances where the university and any other parties (e.g., coaches) agree with the Enforcement Staff on the facts, violations, level(s) of violations, and penalties.[71]<\/span><\/a> If that occurs, and the parties seek to pursue negotiated resolution, they draft a report and submit it to the COI for review.[72]<\/span><\/a> The COI reviews the appropriateness of the parties\u2019 agreed-upon penalties.[73]<\/span><\/a><\/p>\n

If the parties to an infractions case agree to the facts and violation level but disagree on penalties, they may attempt to resolve their case via the \u201csummary disposition\u201d track.[74]<\/span><\/a> When doing so, the Enforcement Staff, university, and any individual subject to a violation charge submit a report to the COI.[75]<\/span><\/a> If the COI accepts the report, it administers penalties.[76]<\/span><\/a> However, the COI may reject the report and order a full hearing if it feels the Enforcement Staff failed to allege a pertinent violation.[77]<\/span><\/a><\/p>\n

The third way an infractions case resolves is via a hearing on a contested case. When the university and\/or individuals dispute the Enforcement Staff\u2019s allegations, a panel of COI members conducts a hearing and determines whether the Enforcement Staff\u2019s allegations are accurate and, if so, imposes penalties on the university and any staff member(s).[78]<\/span><\/a> The COI also has the authority to conclude that violations occurred even when the Enforcement Staff did not allege them.[79]<\/span><\/a> A COI hearing, which is not open to the public,[80]<\/span><\/a> combines elements of a legal trial, an administrative agency hearing, and an academic misconduct hearing on a university campus.[81]<\/span><\/a><\/p>\n

Following a hearing, the COI confers privately,[82]<\/span><\/a> ultimately producing a written decision detailing the facts, violations, penalties,[83]<\/span><\/a> and reasoning for its findings and penalties.[84]<\/span><\/a> This written report is publicly available[85]<\/span><\/a> and is comparable to a court opinion.[86]<\/span><\/a> In summary disposition and contested cases, the COI follows NCAA member-legislated guidelines when issuing penalties.[87]<\/span><\/a> Penalties should reflect the violations\u2019 severity and degree of institutional fault while heeding the interests of other universities not involved in the case by offsetting any competitive or other advantage through sanctions.[88]<\/span><\/a> \u201cThe penalties range from financial penalties and vacation of records to [athletics] scholarship reductions and postseason bans.\u201d[89]<\/span><\/a> A law review article co-authored by former COI Vice Chair Gene Marsh describes the COI as \u201cthe thousand pound gorilla, with the final word in the case.\u201d[90]<\/span><\/a> Some consider the COI to be the most powerful committee in college athletics.[91]<\/span><\/a><\/p>\n

C. NCAA Rules Compliance on University Campuses<\/em><\/p>\n

The NCAA Division I constitution requires member universities to comply with all NCAA rules,[92]<\/span><\/a> and holds universities accountable for their staff members\u2019 actions.[93]<\/span><\/a> Thus, \u201c[b]ecause universities act through individuals for whom they are responsible, when one such individual commits a violation so too does the university.\u201d[94]<\/span><\/a> The university\u2019s knowledge and exercise of due diligence is irrelevant\u2014its responsibility stems from its relationship with the individual who broke rules.[95]<\/span><\/a><\/p>\n

NCAA member universities\u2019 top responsibility toward each other and the NCAA is institutional control.[96]<\/span><\/a> Institutional control requires universities to self-police and self-report any violations of NCAA rules.[97]<\/span><\/a> Thus, just as following NCAA rules is an obligation of NCAA membership, \u201cmember institutions must monitor the conduct of those for whom they are responsible and sanction them for violations.\u201d[98]<\/span><\/a><\/p>\n

NCAA legislation explicitly holds a university\u2019s president or chancellor accountable for its athletics department\u2019s conduct.[99]<\/span><\/a> Practically, however, a university\u2019s athletics director has a greater impact on the attitudes of staff members, coaches, student-athletes, and boosters toward NCAA rules compliance.[100]<\/span><\/a> Athletics directors are full-time administrators who oversee their respective university\u2019s athletics enterprises.[101]<\/span><\/a> Their jobs are 24\/7, and their vast responsibilities may include negotiating multimillion-dollar media and licensing rights agreements, managing highly paid coaches, acting as fundraising and development specialists, balancing budgets, and mastering applicable compliance standards.[102]<\/span><\/a><\/p>\n

While the athletics director \u201csets the tone, NCAA rules compliance hardly defines the job.\u201d[103]<\/span><\/a> As most of the athletics compliance responsibility on a campus therefore falls on the athletics department\u2019s compliance staff, [104]<\/span><\/a> it is essential that an athletics department possesses a strong compliance department.[105]<\/span><\/a> Compliance offices often include several staff members who focus on student-athletes\u2019 financial aid and academic eligibility among all of the other applicable NCAA rules.[106]<\/span><\/a> A university\u2019s athletics compliance department\u2019s overall mission and everyday duty is to keep the athletics department and student-athletes compliant with NCAA rules.[107]<\/span><\/a> Responsible for serving coaches, current and prospective student-athletes, athletics representatives, and supporters of as many as dozens of sports and hundreds of student-athletes,[108]<\/span><\/a> this Section describes the important monitoring and rules enforcement roles that athletics compliance administrators play on their campuses to help maintain institutional control.<\/p>\n

Monitoring systems help ensure rules compliance.[109]<\/span><\/a> A compliance staff\u2019s monitoring efforts include double checking and verifying information.[110]<\/span><\/a> Thus, compliance administrators often require sport staff members and student-athletes to complete and submit numerous forms.[111]<\/span><\/a> For example, coaches must disclose information regarding practice hours so the compliance staff can verify compliance with relevant NCAA limitations.[112]<\/span><\/a> Compliance administrators often verify the veracity of the coaches\u2019 submitted practice hours by providing that information to student-athletes to review and\/or by spot-checking practices.[113]<\/span><\/a> When coaches realize the information they submit is subject to review by their student-athletes or that compliance administrators may show up at practices, they are more likely to provide complete and accurate information.[114]<\/span><\/a><\/p>\n

While coaches may not appreciate this watchful eye on their sport programs,[115]<\/span><\/a> they must understand that \u201cwhen (the COI) concludes that institutional monitoring and oversight were not reasonably calculated to prevent and uncover violations, then it will penalize the institution for a failure to monitor its athletic programs.\u201d[116]<\/span><\/a> A failure to monitor allegation is among the most serious at the Enforcement Staff\u2019s disposal.[117]<\/span><\/a><\/p>\n

Along with effective monitoring, \u201c[e]nforcement is a necessary component to a successful athletics compliance program.\u201d[118]<\/span><\/a> When there appears to be a potential NCAA violation on campus, the compliance staff is often responsible for investigating and, if that investigation concludes that a violation occurred, reporting it to the Enforcement Staff.[119]<\/span><\/a> Compliance administrators usually must impose a penalty for a violation, sometimes in consultation with the athletics director.[120]<\/span><\/a><\/p>\n

II. Monitoring NIL Compliance<\/strong><\/p>\n

Though the interim NIL policy that the NCAA adopted on July 1, 2021that permits student-athletes to monetize their NIL is \u201cminimalist,\u201d[121]<\/span><\/a> it contains some restrictions.[122]<\/span><\/a> The NCAA\u2019s subsequent guidance and clarifications regarding the interim policy placed additional restrictions on universities\u2019 involvement in NIL.[123]<\/span><\/a> Already overwhelmed and under resourced,[124]<\/span><\/a> compliance administrators must monitor and enforce these restrictions on their campuses.[125]<\/span><\/a> This Part identifies the NIL restrictions that universities, specifically athletics compliance administrators, should monitor and suggests activities for doing so.<\/p>\n

A. NCAA Interim Policy and Guidelines<\/em><\/p>\n

The NCAA\u2019s interim NIL policy began on July 1, 2021,[126]<\/span><\/a> and it has since provided clarification or guidance of it in May[127]<\/span><\/a> and October of 2022.[128]<\/span><\/a> The May 2022 guidance was largely a warning shot to \u201ccollectives,\u201d[129]<\/span><\/a> which prominent alumni and influential supporters of a single university establish as a means to pool funds to help provide NIL opportunities for student-athletes.[130]<\/span><\/a> These boosters have formed over 200 collectives nationally,[131]<\/span><\/a> many of which distribute between $3 and $5 million to student-athletes, mostly those who play football or basketball, at a single university.[132]<\/span><\/a> Controversy accompanied the formation of collectives, with reports suggesting that prospective and current student-athletes received multimillion dollar NIL arrangements for enrolling, or staying, at a particular university, respectively.[133]<\/span><\/a> Worried that collectives were using NIL agreements to induce athletes to attend, or remain enrolled at, a particular university, the May 2022 guidance sought to address\u2014and prevent\u2014collectives\u2019 involvement in recruiting.[134]<\/span><\/a> The NCAA pointed out that collectives typically meet its legislated definition of a booster and thus NCAA rules preclude them from engaging in recruiting activities, including recruiting conversations and provision of benefits, on a university\u2019s behalf.[135]<\/span><\/a><\/p>\n

The May 2022 guidance did not slow collectives\u2019 involvement in the recruiting process, however.[136]<\/span><\/a> The NCAA\u2019s October 2022 guidance therefore attempted to address \u201cspecifically how the current rules relate to Division I member schools\u2019 involvement in NIL activities.\u201d[137]<\/span><\/a> While the guidance promulgates both permissible and impermissible forms of university interaction with booster collectives,[138]<\/span><\/a> it actually removed universities from the NIL process to a large degree,[139]<\/span><\/a> largely empowering collectives and other third-party NIL platforms.[140]<\/span><\/a><\/p>\n

B. NCAA Restrictions Regarding NIL and Suggested Monitoring Activities for Them<\/em><\/p>\n

The NCAA\u2019s interim NIL policy and its May and October 2022 guidance and clarifications placed restrictions regarding NIL activities for universities, university staff members, student-athletes, and prospective student-athletes. The below table identifies these restrictions and suggests activities for each that universities should undertake to monitor compliance with them on their campuses.<\/p>\n

Most of the monitoring can be accomplished by the following primary suggested activities:<\/p>\n