Sports

Will The NCAA Intervene On NIL Deals Tied To Enrollment?

That's starting to become the focus of some questions surrounding recent public offers made to current and prospective college athletes.

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On July 1, 2021, when the NCAA removed its prohibition on college athletes monetizing their fame, it included only a few restrictions on the types of permissible activities. A “Question and Answer” document intends to provide guidance as to what is off the table in the mind of the association.

First, a name, image, and likeness (NIL) agreement without a quid pro quo is impermissible. Athletes must provide something in exchange for the receipt of compensation. Second, compensation cannot be premised on an athlete’s participation or achievement related to his or her athletic ability. Third, colleges and universities cannot directly provide compensation in exchange for the use of an athlete’s NIL. Finally, NIL compensation cannot be made contingent upon an athlete’s enrollment at a particular school.

That final point is starting to become the focus of some questions surrounding recent public offers made to current and prospective college athletes.

For instance, on January 5, former National Football League and Eastern Michigan University quarterback, Charlie Batch, fired off a tweet to current college quarterback Caleb Williams, stating in part, “Hey @CALEBcsw, have you considered Eastern Michigan, @EMUFB? If not, you SHOULD. GameAbove Capital is prepared to pay you ONE MILLION DOLLARS for one year! Are you ready [to] be an EAGLE?”

Two days earlier, Williams announced that he was entering the NCAA’s transfer portal after playing a season with Oklahoma University because it is the only way that he can speak with other schools and see who may offer the best preparation and development for his future career. The announcement also followed the coach who recruited him to play at Oklahoma, Lincoln Riley, deciding to leave to be the head football coach at the University of Southern California.

Williams could certainly choose to enroll at Eastern Michigan University on his own volition and not based on Batch’s overture. However, should Williams decide to attend Eastern Michigan and accept the $1 million, then it seemingly would be a direct violation of one of the few NCAA rules that were put into place as of July 1, 2021.

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Batch is not the only person bold enough to publicly provide an offer in an effort to assist his alma mater. In fact, this example concerns a lawyer. Elliot Harding of Harding Counsel PLLC in Charlottesville, Virginia, believed it was wise to tweet that his law firm was “pledging $15K to split among those coming to UVAs Defense via the Transfer Portal and willing to advertise for a dedicated criminal defense and civil rights firm.” Harding could have easily made the offer that current Virginia athletes may receive compensation in exchange for promoting his law firm (assuming Virginia’s bar rules allow that type of advertising), but instead chose to premise the compensation on a player leaving his current school and enrolling at UVA. Again, any player who accepted such a deal would seem to be overtly violating the NCAA’s rule.

Finally, an initiative established by University of Texas supporters may cross the line but is less clear than the prior two examples. On December 6, 2021, a new nonprofit entity, Horns with Heart, extended an offer of $50,000 to every eligible scholarship offensive lineman at Texas starting on August 1, 2022. At first blush, this may not appear to present any issue whatsoever. However, because it is a future offer that is contingent on enrollment at the school in August, it is feasible and perhaps plausible that the offer itself could cause players who may be on the fence to end up enrolling at Texas.

The NCAA has not publicly chimed in on any of the aforesaid promises, which is unlike the association sitting in Indianapolis. However, it is less of a surprise since a Supreme Court Justice told the NCAA that it is not above the law.

Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

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