Innocent Until Proven Guilty? Not in NCAA NIL Rules Violations
With all the uncertainty in NIL, we can all agree one piece of the puzzle is not going away – compliance. The NCAA has not given up attempts to regulate the space, which has added confusion to the piling on of regulations and regulators. However, the NCAA has added in a new way to catch NIL violations and it could be a slippery slope.
The NCAA adopted a new bylaw that creates a presumption of a violation in cases involving NIL offers, activity, and agreements. Even more concerning: Circumstantial evidence is enough to establish that presumption of guilt in the NCAA’s eyes. For schools and collectives, that means it’s more important than ever to ensure that you’re compliant with NCAA rules.
What does NCAA Bylaw 19.7.3 say?
The Bylaw 19.7.3 applies to NIL cases “in which related communications and conduct are subject to NCAA regulation.” In those cases, the NCAA states it will presume a violation occurred “if circumstantial information suggests that one or more parties engaged in impermissible conduct.” To avoid penalties, an institution or involved individual must “clearly demonstrate with credible and sufficient information” that all communications and conduct around the event actually complied with NCAA legislation.
What is the NCAA’s NIL violation investigation process?
The NCAA has a published standard of review for NIL violation cases. When NCAA staff learn of a potential infraction, they can either conduct an expedited investigation or send a letter of inquiry (LOI) to the institution in question. After that investigation, staff will decide whether or not they want to bring charges alleging a violation.
If the institution concedes the violation, then they’ll work with NCAA staff on a summary disposition or negotiated resolution. If the institution contests a violation occurred, it goes to a hearing. It’s during that hearing that the presumption of a violation comes into play and it becomes the university’s burden to overcome.
What does NCAA Bylaw 19.7.3 mean in practice?
We haven’t yet seen how the NCAA would punish an institution found in violation under Bylaw 19.7.3, but a resolution involving a University of Miami infraction that predated the bylaw offers a hint.
In that case, the NCAA and University of Miami agreed that the women’s basketball head coach helped connect a booster with prospective athletes in violation of NCAA rules. The penalties included probation for the school and a suspension for the coach. In the resolution, the NCAA noted that the case was processed prior to Bylaw 19.7.3, so the panel couldn’t presume the violation. New York-based law firm Davis and Gilbert argue that the penalties would have been harsher if the case had arisen after the bylaw’s adoption.