The ‘NIL presumption’ and how an NCAA bylaw change aims to alter infractions cases

The name, image and likeness market has been the hottest topic in college sports for more than 18 months. Prominent college coaches have compared the NIL era to the wild, wild west. Admins alternated complaining and collaborating with collectives backed by boosters from their fanbases. Much of the frustration stems from the NCAA’s lack of clearly defined rules and the lack of repercussions for those who appear to break existing rules.

That could finally change, thanks to a new rule passed by the NCAA in October and effective Jan. 1.

Rule 19.7.3 states that “In cases involving name, image and likeness offers, agreements, and/or activities in which communications and related conduct are subject to NCAA regulation, the process will presume a violation has occurred if circumstantial information suggests that one or more parties are engaging in unacceptable conduct Law enforcement personnel may make a formal allegation based on the presumption. The Hearing Panel must find that a violation has occurred unless the institution or individual involved clearly demonstrates with credible and sufficient information that all communications and conduct surrounding name, image and likeness complied with NCAA law.

“The NIL Presumption,” as it is colloquially known, means that NCAA law enforcement personnel will presume a violation has occurred when they receive information about the activity deemed to give rise to a violation. action, such as a tip or a report. The burden of proof will then be on the school involved to get to the bottom of the situation and prove that no violation took place. The Division I Board of Trustees announced the change Oct. 26 alongside updated NIL guidelines for member schools, but throughout the fall it flew under the radar, even among the most trusted administrators. more legislatively connected. Now that the regulation has come into effect, it has become a more popular topic.

The NCAA has opened NIL-related investigations at a number of schools. Some are ongoing and others have been resolved without penalties being imposed. The NCAA’s draft NIL policy prohibits payment for play and recruiting inducements, but no school has yet been punished for violating those parts of the policy. Some administrators believe that the brazen behavior publicly attributed to certain donors and/or collectives will not change until a school is hit with significant consequences.

Goofy bylaws language aside, the NCAA’s attempts to more actively manage NIL and enforce its rules could become a central storyline of the 2023 offseason and beyond. Jon Duncan, NCAA vice president of enforcement, explained in a Q&A with The Athletic what has changed.

So what happened on January 1, 2023?

Several reforms went into effect January 1 in Division I, and I would say they are transformational. The Offenses Process Committee proposed, and Council supported, some truly significant changes to Section 19, which outlines how potential offenses are investigated, charged, adjudicated and ultimately resolved on appeal. Every step of the infringement process has undergone significant reform, and all of these legislative changes came into effect on January 1. In addition to these changes, through a separate governance process, the NIL presumption also came into effect, which changes the standard by which we make allegations in NIL cases and what we call NIL adjacent cases – which are communications and contacts around the NIL agreement.

The changes are really significant.

So when you say VOID presumption, it’s a presumption that a violation has occurred and then the school has to show proof that it didn’t, that they are following the rules. Is that a good way to describe this?

That’s right, yes.

What does this look like in practice? What is the starting point of the presumption of violation?

If circumstantial evidence suggests that a breach may have occurred, then law enforcement personnel – everyone in the breaches process – can assume that the breach has occurred, and it would then be the responsibility of the school or coach to show that this is not the case. … There have been instances in the past where there were transactions, some of them publicly reported, that appeared to be illegal, but for some reason the infringements process could not substantiate the violation. It was designed to solve that problem, to put the onus on the school to show that what everyone thought was a violation was not. If they can, so much the better. If not, we will have to talk about it as part of the infringement process.

I don’t want to ask if this change makes your job easier because I don’t want to say your job is easy. But is it easier to start from this presumption and this point of view in complicated cases or perhaps where people do not want to cooperate?

No one would ever use execution and ease in the same sentence. (Laughter) I think that relieves us of having to have irrefutable evidence in all cases, to have a witness on the record who says exactly what happened and why, or an overwhelming text or video – which you sometimes receive, but not very often you get. I still wouldn’t say it’s going to be easy or even easier by degrees. But I think it will allow law enforcement personnel to bring to light behaviors that members are concerned about more easily than before.

I’ve heard someone say before that a fan could put a rumor on a message board, and the NCAA will assume it’s a violation. For example, someone could deliberately plant false information. But when I see, in the rules, that it’s circumstantial evidence that could come from a news report, I think it must mean a talking reminder to sign a contract with a rookie on record, or something like that.

I wouldn’t say it’s limited to media reports or social media. We have information from many, many different sources. But we also know that sources have their own agendas. We always have to wonder why anyone would put something on a message board. We know there are people out there who want to use the infringement process to advance their own agendas, and we work very hard to be wise consumers of information and know that sources may have their own reasons for sharing information. We don’t want to fall prey to that. We don’t want to be a pawn in someone else’s scheme. We work very hard to test the information that comes to us. We are people of common sense.

I think the members want the NCAA office in general and law enforcement in particular to be reasonable and use common sense. We do and we will, when we invoke the presumption, and then when a school responds, we will assign a value to what they share. We’re not so cynical that we think everyone is lying to us, but neither are we so naive that we believe everything every booster puts on a bulletin board.

What pressure or what opportunity — depending on how you look at it — is there currently for law enforcement personnel? To really make an impact in the NIL space?

We feel significant pressure and see a significant opportunity to protect compliant programs, which is our mission. There is pressure and not unfair pressure; we know it happens because we know there are offenders. We know that there are behaviors that do not respect the rules. We know that some compliant programs are disadvantaged by their commitment to compliance. There is no pressure in the form of anger from members or threats. It’s the pressure that we know we have work to do. But we also see an opportunity to show members and the public that law enforcement personnel are working around the clock – because we are – to get to the bottom of these cases, to find out the truth about what happened. ‘has passed.

It is also an opportunity to remind members and the public that even though we are working around the clock, we still need the help of members who have personal information and people who have details that would be useful to us. . We can do all we can and use all the tools at our disposal, but ultimately we still need the cooperation of the schools under investigation to deal with us in good faith. We need schools, programs, coaches, and student-athletes who are on the wrong side of a violation to also cooperate with us. … We are all in this together and need to work together to protect compliant programs and protect games.

(Photo: Greg Fiume/NCAA Photos via Getty Images)