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What does the NCAA’s abandonment of the concept of TPA mean for its NIL legislation?

The NCAA has informed its remaining finalists for the third-party administrator, who was supposed to help administer the name, image and likeness activities, that the organization no longer plans to fill the role. Former NCAA executive vice president Oliver Luck, whose company The NIL Education and Information Center with sports media director Bill Squadron was a finalist, confirmed receiving an email informing them of the decision.

The NCAA accepted offers for the role of TPA until last October and initially planned to make a final decision in November. However, he continued to delay this decision, as well as any decision on his own NIL legislation, until finally alerting the finalists that he would abandon the concept of TPA altogether.

Where are we without TPA?

What does that mean for the decision hanging over the NCAA next week when the Division I Council meets on June 22-23 to once again discuss its own name, image and name legislation? resemblance?

Luck says he believes the NCAA will pass legislation covering several “buckets,” as he describes them, by July 1. The first bucket would be what student-athletes can and cannot do.

NIL rights for student-athletes with guardrails

In NCAA legislation reviewed in January and subsequently filed, it looked like this:

Student-athletes could, under the legislation:

  • Receive compensation based on their worth as a student athlete, including any earned value due to their exposure as a student athlete
  • Establish their own business or engage in commercial activities and receive compensation for such activities
  • Use their name, image or likeness to promote sport-related or non-sport-related business activities, including products, services and personal appearances
  • List the institution they attend in accordance with the same policies that apply to any student (however, see below for the restriction against the use of institutional grades)
  • Post or repost content created by the institution or one of its providers on social media, however, the institution retains the rights to the content and the content is not used in any activity for which the student-athlete is paid
  • Sell ​​institution-provided items that are properly retained by the student-athlete at the end of the season, such as awards and clothing, but not before they have exhausted eligibility or become permanently ineligible for competition. However, student-athletes may sell items from the institution. they purchased subject only to institutional restrictions related to the resale of items, including institutional brands
  • Being paid for their autograph, however, a student-athlete is not entitled to receive compensation for signing an autograph while participating in a required sporting activity or otherwise representing the institution and no institutional mark may be used in conjunction with the sale of the autograph
  • Receive remuneration for teaching or training sports skills or techniques in their sport on a fee-for-service basis and use their name, image or appearance to promote or advertise the lessons, under subject to the following conditions: i) if institutional facilities are used, they must follow the same rental processes as the general public; ii) game lessons are prohibited; iii) the remuneration is paid by the beneficiary of the course (or a family member of the beneficiary) and not by any other person or entity, and iv) the teaching is comparable to what would be provided during a private course when teaching involves more than one individual at a time
  • Use their name, image or likeness through a crowdfunding service to raise funds for educational expenses not included in the cost of participation (such as mission trips or internships), as long as there is no no institutional involvement
  • Sell ​​equipment related to their sport, even if their name, image or likeness is used
  • Hire an agent or another advisor, unless it is to obtain an opportunity as a professional athlete

Student-athletes could not, under this legislation:

  • Receive a salary, or a promise of salary, for participation or performance in their sport
  • Receive compensation as an incentive to enroll
  • Involve the institution or any member of the institution’s staff in the development, operation or promotion of the student-athlete’s business activity, unless it is developed as part of the courses of a student-athlete
  • Sell ​​any product or service to an institution or to a staff member of the institution
  • Use institutional facilities in the development, operation or promotion of their business activity
  • Conflict with existing NCAA legislation, such as sports betting rules and banned substances
  • Allow a sports equipment company or manufacturer to use their name, image and likeness to communicate that the institution’s athletic program is using their equipment
  • Engage in activities that conflict with existing institutional sponsorship agreements or institutional values ​​(as defined by the institution)
  • Receive professional services from a staff member of the institution related to activities relating to the name, image and likeness of the student-athlete

There was also a disclosure requirement which stated that student-athletes should disclose the details of any arrangement. This room was to be managed by the TPA. Now, the assumption is that these disclosures would be made directly to the sports departments, falling on them to have the right software, systems and procedures.

Agents and other representations for student-athletes

The second bucket that Luck expects the NCAA to pass into law next week is for agents and representatives of the brand. Previous legislation reviewed earlier this year gave these key guidelines for the use of professional service providers:

  • Can be used for advice regarding name, image and likeness
  • Can provide representation in contract negotiations related to name, image and likeness
  • Cannot be an employee or independent contractor of the institution, except for an entity that contracts primarily to provide products (not services) to the institution
  • Fees must meet industry standards and must be disclosed in a written agreement
  • Student athletes can receive the same de minimis benefits (meals, copies, mail) that a non-student athlete would receive

An acknowledgment in the last proposal stated: “… boosters may be the most likely sources of opportunities for student-athletes to engage in name, image and likeness activities. Student-athletes should be allowed to take advantage of legitimate opportunities, even if the source of the opportunity is from an institution booster.

Rights of future student-athletes

The final strand that Luck expects to see is about potential student-athletes, which would allow high school students to enjoy the same types of opportunities without fear of losing their eligibility.

What to expect from the NCAA

“I can’t imagine the NCAA doesn’t have its own system,” Luck says. “It would be just awful. I can’t imagine a worse scenario.

Former contributor Darren Heitner, a Florida attorney involved in Florida’s NIL legislation, believes the NCAA has no choice but to pass its own legislation given the government’s failure federal government to intervene and help it by passing a national law.

“I generally refuse to make assumptions or speculate on what the NCAA will or won’t do on any given issue because the NCAA rarely acts like a rational actor. However, it looks like the NCAA, after years of doing nothing and doing nothing about name, image, and likeness, will be left with no choice but to pass legislation one week at a time. barely before many states enact their own NIL laws. “

“If the NCAA does nothing, it will be powerless if many athletes in states that have not enacted such NIL laws start marketing their advertising rights,” Heitner said. “If the NCAA took punitive action against these athletes and / or their schools, it could cause a major backlash that would cripple the entire NCAA institution. “

Of course, there is always the possibility that the NCAA will simply decide to grant a blanket waiver of its current rules prohibiting student-athletes from enjoying their name, image, and likeness to student-athletes in states with laws come into force.

“If the NCAA provides a blanket waiver instead of passing legislation, then athletes from states without NIL laws would have fewer restrictions than those from states with NIL laws, and that would totally destroy the whole model of amateurism,” which is a fraud in itself, “Heitner says.

Even if the NCAA passes its own legislation, expect to see a bit of a Wild West scenario as the school year approaches. Although institutions have been preparing for some time, they make decisions without knowing what rules will govern the NIL beyond the enacted state laws.

By July 1, institutions will either have new NCAA legislation to learn and implement quickly, or they will attempt to navigate individual state laws with perhaps little or no NCAA guidance. Brands, agents, and other types of representatives will also try to figure out what they can and cannot do as the market opens up, and student-athletes will try to balance the exploitation of these new rights and ensure that they remain eligible.

Six states are currently set to bring their own NIL laws into effect on July 1: Alabama, Florida, Georgia, Mississippi, New Mexico, and Texas. Oklahoma and Nebraska laws allow schools to grant NIL rights immediately, although neither have done so yet. Eleven other states have laws that are due to come into force on dates that span the next two years.

Two sources also confirmed that the NCAA has reserved emergency meeting time the week of June 28 in case additional meetings are needed following discussions scheduled for next week.

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