Board of Governors moves toward allowing student-athlete compensation

At its meeting this week, the Board of Governors supported rule changes to allow student-athletes to receive compensation for third-party endorsements both related to and separate from athletics. It also supports compensation for other student-athlete opportunities, such as social media, businesses they have started and personal appearances within the guiding principles originally outlined by the board in October.

While student-athletes would be permitted to identify themselves by sport and school, the use of conference and school logos, trademarks or other involvement would not be allowed. The board emphasized that at no point should a university or college pay student-athletes for name, image and likeness activities.

The board directed all three divisions to consider appropriate rules changes based on recommendations from its Federal and State Legislation Working Group.

“Throughout our efforts to enhance support for college athletes, the NCAA has relied upon considerable feedback from and the engagement of our members, including numerous student-athletes, from all three divisions,” said Michael V. Drake, chair of the board and president of Ohio State. “Allowing promotions and third-party endorsements is uncharted territory.”

The board’s recommendations now will move to the rules-making structure in each of the NCAA’s three divisions for further consideration. The divisions are expected to adopt new name, image and likeness rules by January to take effect at the start of the 2021-22 academic year.

The board is requiring guardrails around any future name, image and likeness activities. These would include no name, image and likeness activities that would be considered pay for play; no school or conference involvement; no use of name, image and likeness for recruiting by schools or boosters; and the regulation of agents and advisors.

The board’s action is the latest step by the Association to support college athletes and modernize its rules regarding name, image and likeness. In October, the board identified guiding principles to ensure that any changes support college sports as a part of higher education. Any changes adopted by the divisions must be in concert with the following principles and guidelines:

Ensuring student-athletes are treated similarly to nonathlete students unless a compelling reason exists to differentiate.
Maintaining the priorities of education and the collegiate experience to provide opportunities for student-athlete success.
Ensuring rules are transparent, focused and enforceable, and facilitating fair and balanced competition.
Making clear the distinction between collegiate and professional opportunities.
Making clear that compensation for athletics performance or participation is impermissible.
Reaffirming that student-athletes are students first and not employees of the university.
Enhancing principles of diversity, inclusion and gender equity.
Protecting the recruiting environment and prohibiting inducements to select, remain at or transfer to a specific institution.
The board relied on a comprehensive report from the Federal and State Legislation Working Group to inform its recommendations.

“The NCAA’s work to modernize name, image and likeness continues, and we plan to make these important changes on the original timeline, no later than January 2021,” said Gene Smith, Ohio State senior vice president and athletics director and working group co-chair. “The board’s decision today provides further guidance to each division as they create and adopt appropriate rules changes.”

In its report, the working group recognized that the rules needed to accomplish the modifications may differ by division and stressed the need for appropriate regulation in the future.

“As we evolve, the Association will continue to identify the guardrails to further support student-athletes within the context of college sports and higher education,” said Val Ackerman, commissioner of the Big East and working group co-chair. “In addition, we are mindful of the impact of the COVID-19 pandemic on higher education, college sports and students at large. We hope that modernized name, image and likeness rules will further assist college athletes during these unprecedented times and beyond.”

The board also discussed the potential challenges to modernizing rules posed by outside legal and legislative factors that could significantly undermine the NCAA’s ability to take meaningful action. As a result, it will engage Congress to take steps that include the following:

Ensuring federal preemption over state name, image and likeness laws.
Establishing a “safe harbor” for the Association to provide protection against lawsuits filed for name, image and likeness rules.
Safeguarding the nonemployment status of student-athletes.
Maintaining the distinction between college athletes and professional athletes.
Upholding the NCAA’s values, including diversity, inclusion and gender equity.
The recommendations for federal engagement were provided by the Presidential Subcommittee on Congressional Action, which was formed as part of the Federal and State Legislation Working Group to provide input on the potential assistance the NCAA should seek from Congress.

“The evolving legal and legislative landscape around these issues not only could undermine college sports as a part of higher education but also significantly limit the NCAA’s ability to meet the needs of college athletes moving forward,” Drake said. “We must continue to engage with Congress in order to secure the appropriate legal and legislative framework to modernize our rules around name, image and likeness. We will do so in a way that underscores the Association’s mission to oversee and protect college athletics and college athletes on a national scale.”