The foundation is in place for the NCAA to drastically alter its definition of amateurism.
By this time next year, college athletes may have the official OK to become paid sponsors, able to earn money for their names, images and likenesses without compromising their eligibility.
College football fans here certainly remember how Ohio State players got into trouble with the NCAA in 2010 for trading their own memorabilia and gear for tattoos. Many also recall when Heisman Trophy winner Johnny Manziel signed autographs for money in 2013 and everyone wondered what the punishment might be.
Under the new rules being drawn up across the NCAA, such actions likely would be fine. A report from the NCAA’s Federal and State Legislation Working Group announced Wednesday laid out how we got here, what has been agreed upon and what is still to be determined.
There is still a lot to figure out, including how the NCAA will draw up "guardrails" to ensure that the role of third parties in student-athlete NIL activities is regulated.
"The challenge of evaluating this is we don’t know where they have landed yet," said Gabe Feldman, director of the Tulane University sports law program.
Among the things the NCAA has to figure out is how to assess the fair-market value for an athlete appearing in a television commercial for a local business, signing autographs at a memorabilia shop or promoting a product or event on social media.
"It is still a moving target," said Ohio State athletic director Gene Smith, who co-chaired the group that produced the recommendations.
Big East commissioner Val Ackerman, who also chaired the working group, said there has been discussion about creating a third party to make those assessments and manage disclosure.
"This has been referred to alternatively to as a clearinghouse or a registry or an NIL center," Ackerman said. "I don’t know that there would be an approval mechanism, but the notion would be to create the sunshine and the transparency that would allow us to monitor valuations and booster involvement."
While NCAA leaders celebrated the move as another example of evolving to better serve college athletes, there are plenty of skeptics.
Reactions from lawmakers to the NCAA’s announcement has ranged from cautiously optimistic to downright dismissive. California state Sen. Nancy Skinner, the primary driver of the state’s law on the topic, said it was a step in the right direction. But Florida state Rep. Chip LaMarca said, "If the NCAA’s goal was to limit access, then they have accomplished their goal."
The NCAA is hoping to get help from Congress in the form of a federal law that will override anything states come up with and provide uniformity. Sens. Chris Murphy and Mitt Romney are leading a group of lawmakers examining compensation for college athletes and related issues.
"This proposal is one step forward, one step back," tweeted Murphy, a Connecticut Democrat who has pushed for more economic rights for college athletes. "The NCAA wants to limit athlete endorsement deals in a way that could make them totally impractical. And the NCAA wants Congress to give it total power of athletes’ compensation. That should be a non-starter."
California lawmakers already passed a bill that would make it illegal for NCAA schools to prohibit college athletes from making money on endorsements, social media advertising and other activities. The law goes into effect in 2023. Dozens of states have followed California's lead; a Florida bill awaiting the governor’s signature would go into effect July 2021.
"Recommendations today by the (NCAA) are about protecting their pockets, not student athletes," LaMarca, a Republican, tweeted. "Now they are shifting blame for their deliberate inaction to states that have passed meaningful legislation to protect students’ right to earn a living."
It also should be noted that the NCAA is still fighting the appeal of an antitrust case in which plaintiffs claimed the association and its member schools and conferences have been illegally capping compensation to athletes at the value of a scholarship.
Jeffrey Kessler, the lead attorney in that case, said the NCAA’s move toward NIL compensation for athletes "completely destroys every argument they’ve made in the past."
"Their defense has been if you allow to permit any type of compensation to the athletes beyond what they call ‘cost of attendance,’ this will destroy the whole concept of amateurism and destroy fan interest in college sports," Kessler said, adding that there now is no justification left for any of the NCAA’s restrictions.