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NCAA to Ban Performance Considerations in NIL Deals

Paul Steinbach

In its “Interim NIL Policy,” the NCAA forbids on-field performance from altering the value of name, image and likeness endorsement deals, according to Sports Illustrated’s Ross Dellenger, who tweeted an NCAA document Saturday.

As reported by Yahoo!Sports, the policy appears more rigid in regard to “prohibitions related to pay for play, impermissible offers and inducements or extra benefits.” It notes that NIL can’t disguise pay-for-play, such as NIL compensation being contingent on a recruit enrolling at a particular school. A violating school would breach their NCAA membership contract and face repercussions.

The policy also forbids NIL compensation tied to “specific athletic performance or achievement,” such as “financial incentives based on points scored.” While the policy acknowledges that “athlete performance may enhance” an athlete’s “NIL value”, such performance can’t be used as “consideration” for “athlete NIL competition. Therefore, college athlete endorsement deals won’t contain incentive clauses tied to touchdown passes or points per game, etc.

This new policy notwithstanding, the NCAA has decided to largely defer decisions on compensation for college athletes to states with their own laws or, in the event no such law is in effect, individual schools. According to Michael McCann of Yahoo!Sports, the policy draws on more cautious language than is generally found with NCAA rules. For instance, athletes at schools “should” report their “NIL activities” consistent with school requirements. The use of “should”, rather than “shall” or “must,” is logical given that the NCAA’s policy consists of guidelines rather than express rules. Yet, it also invites interpretative questions for athletic department compliance officers.

As reported by SI's Dellenger, this latest draft from the NCAA will be discussed Monday at the association's DI Council meeting, where feedback will then be given to the DI Board of Directors, which meets Wednesday to officially adopt this proposal.

McCann writes that the policy is intended to last until either Congress passes a federal NIL statute—an event that may never occur—or the NCAA adopting a more lasting NIL solution. In calling for a mostly free market, school-by-school approach, the policy reflects a stark contrast to the NCAA’s longstanding opposition to a decentralized, unregulated model for NIL, a form of athlete compensation prohibited by the NCAA Bylaw 12. (Dellenger tweets, "The NCAA is waiving Bylaw 12, basically.") The policy also conflicts with a core NCAA tenet that athletes’ rights are equal regardless of their institution or state.

Seven states — Alabama, Florida, Georgia, Mississippi, New Mexico, Tennessee and Texas — have state NIL statutes going into effect on July 1.

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