If you’re looking for a clear-cut picture of what the landscape for player compensation after the Alston decision looks like, you could do a lot worse than reading this Michael McCann post that breaks things down into twelve questions and answers.
This, in particular, appears especially prescient:
What will the NCAA do on July 1?
We know that Emmert has implored member schools to adopt NIL rules that would apply nationally and that conferences might take action before July 1.
A national framework would ensure all athletes enjoy the same set of NIL rights, regardless of where they live or in which state their school resides. In my recent testimony before the U.S. Senate, I argued for a national framework and urged Congress to adopt one that preempts state NIL statutes. Neither the NCAA nor member schools have the legal authority to preempt state statutes.
In theory, the NCAA could threaten member schools with penalties or even breach of contract litigation should they permit their athletes to sign endorsements in violation of NCAA rules. Schools in NIL states would argue they must comply with state law, but the NCAA could—again, in theory—remind them they also have a legal obligation to comply with contractual obligations to the NCAA.
In reality, the NCAA is in a weakened position to play the role of membership enforcer or would-be plaintiff. It is more likely to adopt permissive NIL rules or acquiesce to states with NIL statutes until it can formulate a national approach.
Like they’ve got a choice.
NCAA officials are targeting a new, simplified solution to allow athletes to profit from their name, image and likeness—just in the nick of time, too.
The organization, having abandoned exhaustive NIL legislation that’s been ready for months, is expected to now adopt a more permissive, alternative model most similar to the one proposed last week by six Division I conference commissioners, sources tell Sports Illustrated.
A week before a cascade of state laws threatens to plunge college sports into a proverbial inequitable playing field, the NCAA Division I Board of Directors, the division’s highest ranked governing body made up of school presidents and chancellors, is scheduled to meet virtually Thursday and further explore the alternative model.
The model, a stopgap until Congress can pass a uniform bill to govern the issue, removes guardrails in the original legislation that would have conflicted with the bevy of state NIL laws taking effect July 1. The proposal attempts to level the playing field for athletes enrolled at schools residing in states without an NIL law, potentially granting them unfettered access to strike NIL deals.
Under the plan, effective July 1, the NCAA would mostly exempt itself from NIL. Schools in states with an NIL law may follow that law without penalty, and schools located in states without a statute are granted permission to each create and administer their own NIL policy, as long as they use guiding principles such as prohibiting NIL ventures designed as pay-for-play or recruiting inducements.
The proposal, drafted by the NCAA’s staff and legal team in light of Monday’s ruling from the Supreme Court, comes five days after commissioners Greg Sankey (SEC), Jim Phillips (ACC), Larry Scott (Pac-12) and three other league executives sent a similar model to NCAA leaders, encouraging them to punt on permanent legislation and instead adopt an alternate solution.
Give ’em credit for one thing: they’ve embraced the wisdom of the First Rule of Holes.
… In this plan, the NCAA is avoiding responsibility, placing the onus on schools and conferences to draft their own proposals to avoid legal issues, says Darren Heitner, a sports law professor in Florida who helped draft that state’s NIL law.
“If the NCAA says to its school, ’This is up to you! We’re taking a hands off approach!’ Then the NCAA can effectively argue, if sued, that it has nothing to do with it,” he says. “If each school is able to create its own NIL rules, without colluding, even if they mirror each other, that shouldn’t be a problem from an antitrust perspective.”
Of course, that isn’t to say there aren’t a few morons out there with a differing opinion.
Not everyone is on board with the alternative model. In fact, this quandary—the unrestricted, alternative solution vs. the NCAA’s more restrictive permanent legislation—is a divisive issue that has led to robust debate and somewhat fractured feelings among high-level conference administrators.
Some say the alternative plan “goes way too far” and that they’d prefer to begin with more restrictive rules before slowly working toward a more permissive model. One Power 5 administrator even described the new solution as “disrespectful” to the NCAA NIL working group, which spent two years drafting the original legislative proposal.
“Clearly we have differences of opinion on the legal issues around this,” says one high-level administrator. “You’ve got a number of states with different standards. Different groups are coming to different conclusions on addressing that.”
Sounds like the rest of Mark Emmert’s June is gonna be a blast.