What does the new NCAA Constitution mean for NIL?

By: Spencer Bauer

On November 8th, the NCAA released a revised, roughly 19 page constitution draft that will be discussed and voted on at the upcoming NCAA Constitutional Conference. This new constitution will seek to reorganize the governmental structure of the NCAA and address athlete compensation. The NCAA originally scheduled this convention earlier this summer, but the growing tension surrounding the governmental power of the NCAA and the legal implications following the Alston decision have left the Board of Governors with an extremely difficult task in an impossible timeframe.

How can the NCAA possibly re-write and implement a new constitution when their entire amateurism model has been called into question by the Supreme Court? The NCAA may attempt to state that this new constitution will reorganize divisional power amongst participating schools and streamline the inner workings of the governing body by reducing the Board of Governors members to 9, however it cannot muster enough provisions to cover up the underlying intention of the new constitution and the elephant in the room. Since the NCAA is fearful of antitrust lawsuits and the possibility of their amateurism model being declared unconstitutional, is the NCAA granting more autonomy to the individual schools to alleviate themselves of liability? Time will only tell.

On the second page of the new constitution draft, the NCAA encourages name, image and likeness benefits for student athletes, but asserts that student athletes may not be paid by their universities and that the amateurism model must be upheld due to the primacy of the academic experience. This sentiment is echoed on the tenth page of the document, where the NCAA delegates power to the conferences and individual institutions to establish regulations on name, image and likeness. The language in this section suggests that individual institutions must establish their own “NIL” regulations so that consistency can be maintained among the institutions and that exploitation of student athletes can be avoided. This section of the proposed constitution is likely to appear as a quote in many different legal actions since the NCAA is essentially punting the ball off to the schools. If the consistency of NIL rules and the prevention of exploitation was the main reason for each individual school to draft and implement their own NIL rules, the NCAA could have drafted their own national NIL rule. Instead, the NCAA is counting on over 1,000 schools to implement and follow 1,000 different NIL rules. This decision to delegate the NIL regulations to the individual institutions and conferences seems to be inexplicable, unless you analyse this decision through a lens of liability and risk management.

Following the Alston decision, the NCAA clearly knows that legal challenges to NIL and their amateurism are on the horizon. Delegating the power to enact and follow NIL rules to the individual institutions could potentially clear out an antitrust violation claim since the NCAA did not enact a national rule. The NCAA is well aware of their current issues, and is paying extremely close attention to NIL. The other proposals within the new constitution draft are beneficial on their face and will likely help collegiate athletics as a whole. However, the other proposed changes seem to be essentially window dressing, concealing the real issue behind amending the NCAA constitution. I am not suggesting that the entire NCAA constitution is being changed due to the potential legal challenges associated with amateurism, however the structure and powers of individual schools had a much tighter leash before the Alston decision. However this constitution is interpreted, it will greatly affect NIL in the future.