Why Congress Should Ignore All NCAA Entreaties for New National Player NIL Legislation

“Before participation in intercollegiate competition each academic year, a student-athlete shall sign a statement in a form prescribed by the NCAA Division 1 Legislative Committee in which the student athlete submits information related to eligibility, recruitment, financial aid, amateur status, previous positive drug tests administered by any other athletics organization.”

The above passage is lifted from the current Student-Athlete Statement which the D-1 player is required to sign. It also states that a failure to sign “shall result” in his “ineligibility for participation.” It further provides that he must sign “in order to be eligible to participate in intercollegiate competition.” 

“There is no basis in NCAA rules for withholding eligibility from a student-athlete who has declined to consent to that section.”

But any claim that the player’s signature is required should be contrasted with 2012 sworn deposition testimony from top NCAA top executives. When questioned as to whether the player’s signature on the NIL waiver (within that 2012 version of the SAS) was required, NCAA President Emmert responded, “I don’t know of an incident where that’s been an issue. I believe,” Emmert added, “it’s the case that there is not a formal requirement, but I’m not completely sure of that.” NCAA Vice President Kevin Lennon similarly testified that the player who did not sign that section “would not lose his or her eligibility to play NCAA sports,” adding that “there is no basis in NCAA rules for withholding eligibility from a student-athlete who has declined to consent to that section.” And NCAA Vice President David Berst testified that the section was “voluntary,” and that he would be “pleased to ensure that it’s clearly understood that the player has a choice.” 

But if the player had no duty to sign that NIL waiver section, during an era when the SAS explicitly told him that signing the document was “required,” why – for two years after their testimony – did those top NCAA executives do nothing to ‘ensure,’ as Berst had promised, that all players would know they had no obligation to sign that section?

That, in fact, never happened; instead, the NCAA suddenly excised the NIL-waiver section from the SAS in August 2014, at the end of the O’Bannon trial testimony, but before the O’Bannon verdict at the trial level.

What do these facts tell you?

Since 2014, the NCAA Has Not Been in the Business of Governing Player NIL

At least since August 2014, the NCAA has not been in the business of governing player NIL. To use the NCAA’s own classifications, the 2014 excision of the NIL shifted the topic, from NCAA majority-rule defined ‘Institutional Control’, to ‘Home Rule’ — where it was left to the individual school or conference.

(So why did the NCAA dump that waiver?: It was done quietly, and without explanation, but the timing — at the very end of the O’Bannon trial, was a broad hint: it was to dodge antitrust sanction, by telling the court and the public that the NCAA would no longer control or own player NIL.)

But there may be a broader lesson.

The NCAA Has Never Required the Player to Surrender His NIL

The NCAA executives’ testimony suggested that the player has always had the freedom to refuse, without penalty, to sign the NIL waiver. In fact, the necessary lesson from that testimony is that the “required” or “shall sign” instructions within today’s SAS is just the same old trick by the document’s drafters, to get the player to sign the NIL waiver — the same drafters who might, when later pressed, confess to the recruit, with a grin: “Aw, we didn’t mean you had to sign – we just wanted to seize as many assets and rights as you might be stupid enough to sign over to us!”

This sworn testimony suggests that a signature by today’s player on an NIL waiver presented to him by school or conference is not required by the NCAA. It also suggests that, since 2014, (and, perhaps, long before), the NCAA has not been in the business of governing player NIL rights.

Why Does This Matter?

Despite all appearances, the NCAA has, for at least seven years, but also, more likely, even decades, been avoiding the business of governing player NIL.

The NCAA’s failure, over the last two years, to adopt player NIL legislation — contrary to Mark Emmert’s assertions — has nothing to do with a failure to reach suitable compromise within the organization. It is a mere continuation of the NCAA’s decades-old de facto policy of shunning all governance of player NIL.

No Congressperson, or anyone else, should entertain any lobbying effort by Mark Emmert or the NCAA, to pass legislation affecting player NIL. The NCAA long ago happily left the issue to the individual school or conference.

For at least seven years, and perhaps decades, the NCAA has insisted that schools and conferences must govern player NIL. That’s exactly what has happened, and the NCAA should not now be heard that some outside national legislative body needs to change things.

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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