NCAA waiver to effectively allow name, image and likeness rights for athletes near completion

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USATSI

The Division I Board of Directors is likely to grant relief from existing regulations that prohibit athletes from benefiting off their name, image and likeness (NIL), creating a “bridge” to July 1 and beyond, sources tell CBS Sports. On that date, at least six states will have NIL laws going into effect. The NCAA has been scrambling to put its own rules in place to govern athletes in the remaining states.

The move is strategic by the NCAA. The idea is that the association will avoid enacting new rules that might be subject to lawsuits. For the moment, it would temporarily resolve the NCAA’s role in legislating what are basically going to be nearly unregulated NIL benefits. Members were increasingly nervous about that prospect after the Supreme Court highly criticized the NCAA while rendering its decision Monday in NCAA vs. Alston.

In essence, the action would be an interim waiver of existing NCAA rules that prohibit NIL benefits.

CBS Sports obtained an internal NCAA document titled “Proposed Alternative Rules Amendment.” Though that document — slightly more than a page long — is still going through edits, it details the NCAA’s strategy. 

  • An athlete will not be penalized for profiting from their name, image and likes in states that have NIL regulations.
  • Schools shall post on their websites “written policy governing NIL” prohibiting payments from boosters “in exchange for athletic performance or attendance” at that school.

It is important to note that restrictions against cheating to get a recruit “shall cease to be applicable” if it conflicts with any state’s NIL law.

What is labeled Bylaw 12.5.5 “shall be reviewed, revised, repealed or altered as appropriate.” That speaks to the temporary nature of the legislation.

The document may be what NCAA president Mark Emmert was referring to Wednesday in a leaked memo sent to membership. He stated the NCAA is “working with divisional governance bodies to develop interim solutions.”

While all three NCAA divisions will have to adopt the change through their governance processes., most of the pressure is on Division I where all the major revenue-producing schools reside. It is about to undergo fundamental change in terms of player compensation.

For the last two years, the NCAA has come around to changing the foundation of its amateurism bylaws allowing athletes to be paid for commercials, endorsements, autographs and the like.

However, the NCAA has tabled formal NIL legislation since January because of multiple concerns. What has emerged is a sense of desperation within the membership as the NCAA lacked direction. Because of the wait and mounting legal questions, athletes will likely be able to get unprecedented benefits for their talents.

Following Monday’s Supreme Court decision, there is a general feeling that the NCAA can’t do much of anything in the near term to limit NIL compensation without subjecting itself to another lawsuit.

“I don’t know how there are going to be a lot of regulations going forward,” a source close to the discussions said. “There’s really not much you can regulate at this point.”

That should add to the angst of coaches and athletic directors who don’t know how, when and/or whether this is going to impact recruiting and budgets. Sen. Maria Cantwell (D-WA), chair of the Senate Committee on Commerce, has already said Congress will not have a federal bill prepared by July 1 to exempt the NCAA from lawsuits.

The relief language, according to one source, is meant to be a “bridge” to that Congressional bill.

The bill may never come. Legislation being developed in the Senate already has become politicized (a lot of bills do as they work their way through the system). In general, Republicans are seeking an antitrust exemption for the NCAA, while Democrats favor long-term medical care and extended scholarships to ensure athletes earn a degree.

The Board of Directors will be briefed on the change Thursday during a regularly scheduled meeting. The NCAA Council will meet again Monday before the board is expected to meet Tuesday and Wednesday and approve the change. If it comes Wednesday, the relief would be put into place just one day before NIL laws go into effect Thursday in Alabama, Florida, Georgia, Mississippi, New Mexico and Texas. The Oregon State Legislature also passed an NIL bill this week that is headed to Gov. Kate Brown’s desk.

CBS Sports previously reported there will be no action from the NCAA Council this week. However, a council source said Wednesday expected to “see something [to contemplate] before the weekend, probably an updated version of what they sent out earlier this week.”

That source added: “This is insane.”

An alternate proposal introduced last week now is less likely to be adopted despite having the support of the ACC, Pac-12 and SEC among other smaller Division I conferences. It involves athletes going directly to schools and conferences to negotiate NIL deals. That would conceivably limit legal liability for the NCAA. Athletes who didn’t like an offer at one school would have hundreds of others from which to choose, at least diminishing the possibility of antitrust action.

As of Sunday, it was questionable whether the proposal could reach the threshold of passage by the NCAA Council. The alternative proposal would require 75% support from the council just to be considered for passage. That was before the Supreme Court decision.

“There are a bunch of the membership that are just clamoring for guidance,” said another council source close to the discussions. “The more guidance that is in there, the more litigation risk.”

The NCAA can’t afford to get too intrusive after an epic legal defeat. Justice Brett Kavanaugh basically warned the NCAA, writing in a concurring opinion that its “current compensation regime raises serious questions under the antitrust laws.”