The NCAA Division I Transformation Committee is a group commissioned by the NCAA Division I Board of Directors to lead “modernization” efforts following issuance of the NCAA’s new constitution. Their report, published and approved by the DI Board in January, largely punted responsibility for name, image, and likeness regulations to the state and/or federal governments or agencies.
In a “Reintroduction” of the Transformation Committee, Jere Morehead, chair of the NCAA Division I Board of Directors wrote:
Suddenly, the NCAA’s authority to apply consistent rules to schools across the country has been thoroughly strained. Issues that are common to student-athletes and athletics departments across the country are being regulated by vastly different state laws. We’re already seeing that with name, image and likeness compensation, which has inspired 30-plus individual state laws. In short time, this patchwork of state laws will cripple the notion of integrity of athletics competitions, diminishing the number of teams in a position to fairly compete for national championships.
While the Transformation Committee expresses concern about “crippl[ing]” the integrity in athletics and overall fairness in the NCAA, the overall NIL landscape paints a more complicated picture of the growing pains felt across the NCAA in light of NIL developments.
While 27 states have already enacted NIL legislation, another handful of states are considering it. Certain of those states are awaiting developments from the federal government. Particularly, the Innovation, Data, and Commerce Subcommittee of the House of Representatives is set to meet March 29, 2023, to consider protections for college athletes and their deal making abilities. This marks the first time since Republicans have taken a majority in the House and new NCAA president (and former Republican governor of Massachusetts) Charlie Baker took the helm that NIL legislation will be formally discussed at the federal level. Scheduled to answer questions are a slew of former and current athletes, athletic directors, school presidents, and league commissioners.
While the NCAA is likely seeking federal NIL legislation to create uniform regulations and level the playing field—and potentially absolve the NCAA of any antitrust violations—no NIL bill has made it out of committee, let alone reached a floor vote. Federal NIL legislation could not only touch on antitrust regulations but also the right of publicity, which has thus far been reserved to the states and is applicable to not only college athletes but other entertainers as well.
GROWING PAINS IN NIL: BENEFITS AND ADJUSTMENTS
Framing the House Subcommittee’s discussion are recent NIL deals, including many lucrative deals for the University of Miami’s men’s and women’s basketball teams. Indeed, NIL has opened up a litany of opportunities for students to monetize their name, image, and likeness, from branded athletic clinics for children to multi-million-dollar influencer deals. Louisiana State University’s gymnast, Olivia Dunne, is one example of an elite athlete who has been able to achieve a seven-figure paycheck as well as the moniker of the highest-earning female NCAA athlete. Even Dunne’s case, fame and success has not come without difficulty. LSU has had to implement added security measures to protect Dunne and her teammates’ safety in light of all of the media and fan attention that have been directed at LSU gymnastics.
Ohio State’s CJ Stroud was likely the highest earning male athlete of this past year, although he has announced via social media that he intends to enter the 2023 NFL Draft. Stroud has also been the subject of negative social media attention, especially in connection with Ohio State’s loss to Michigan in 2022.
Athletes are clearly reaping high monetary benefit at a potentially significant cost to their physical and emotional wellbeing. The Transformation Committee has clearly taken athletes’ safety and mental health into consideration in proposing new programs and benefits to be offered by Division I schools.
CURRENT DIVISION I REGULATIONS
Division I schools are also now permitted to purchase insurance for student-athletes, including student-athletes who may suffer critical injuries, get sick, or lose the ability to participate in their sport.
Schools may now provide a litany of incidental benefits to support Division I athletes’ academic success, including transportation to and from campus and games (including games in which the athlete will not compete). Training expenses, travel, tryouts, and other events related to national team selection may also be covered.
Entertainment and meal restrictions have been reduced, and schools may provide “reasonable” expenses for entertainment, including vacations, subject to the school’s “discretion.”
Division I schools are also permitted to provide complimentary admissions for student-athletes’ friends and family with fewer restrictions. Schools may also arrange for student-athletes to purchase tickets at face value.
THE FUTURE OF DIVISION I COLLEGIATE SPORTS
While the future of NIL—both substantively and procedurally—remains uncertain, the Transformation Committee’s final report suggests that schools should soon be able to provide athletes with enhanced mental health treatment and financial investment advice, among other reforms. Julie Cromer, director of athletics at Ohio University, and Greg Sankey, commissioner of the Southeastern Conference, co-chairs of the Division I Transformation Committee, outlined their vision for the future of Division I as follows:
“[A]ll student-athletes will be able to pursue their academic and athletic ambitions knowing that they’ll have access to:
- At least two years of medical coverage after college or the completion of their athletic career if they sustain an athletically related injury.
- Mental health treatment and services in accordance with recognized best practices.
- Degree completion funds for 10 years, should they choose to step away from their studies before reaching graduation, before eventually deciding to return.
- Academic, career and life skills counseling so that they are given every resource needed to make informed decisions about their minds, bodies, careers and finances.
The ability to retain degree completion funds for up to 10 years would be life-changing for many athletes, especially those who suffer athletics career-ending injuries that require time be taken away from study. Development of the more “aspirational” portions of the report will continue to develop as the NCAA adjusts to the brave new world of elite collegiate sports.
For more information or to discuss further, please contact KJK attorneys Anna Bullock or Kyle Stroup, or one of the attorneys in KJK’s Student Athlete Defense practice group.