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Executive Summary:With respect to the NCAA’s most recent NIL draft legislative proposal, we have several concerns, as outlined below. First, with respect to disclosure of NIL activities, since our initial comment from March 9, 2020, we have advocated that student-athletes should be required to disclose NIL deals to a third party administrator (TPA) so that the TPA could build intelligence in monitoring NIL deals over time, as well as flag NIL deals out of the norm. Second, with respect to merchandise and memorabilia, we recommend a low regulation model given that any complicated regulatory structure would seem punitive to student-athletes, be criticized by the general public, and be difficult to pass when more than 30 states are in the process of passing low regulation models. Third, with respect to autographs, we suggest that the current legislative proposal be written more clearly to mitigate possible confusion with respect to permissible institutional affiliation. Fourth, with regard to conflicts with institutional agreements, any prohibitions on a student-athlete’s right to earn compensation from their NIL will be subject to increased litigation. Therefore, we recommend the removal of any prohibited category of NIL deals. Fifth, over time, the prohibition that student-athletes may not retain professional service providers (e.g., agents) for the purpose of securing professional sports opportunities is overly restrictive and difficult – if not unnecessary – to enforce. Sixth, while the Legislative Solutions Group has stated that the current legislative proposal reflects booster and pre-enrollment regulations, we recommend that a sophisticated registrar within the TPA regulate all booster involvement by performing preliminary background checks and flagging certain deals. More clarity is also needed on specific pre-enrollment parameters such as whether prospective student-athletes can keep their high school contracts while in college and whether institutional marks may be permissible in such agreements.

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