“The LEAD1 Angle” Episode 4: Mit Winter, Kennyhertz Perry


Download and Subscribe

Episode 4 on Apple Podcasts     Episode 4 on Spotify


Written Recap

In a normal year for college sports, the NCAA’s recently adopted emergency legislation to implement an injunction issued by U.S. District Judge Claudia Wilken would grab the headlines. But, of course, this is 2020, and something as game-changing as a court order enjoining NCAA limits on most compensation and benefits that are related to education, can get lost among all the news. But, here at LEAD1, we have taken it upon ourselves to cover the most important topics in as much depth and in the most uniform way possible. To this end, today, we released our fourth Episode of the “LEAD1 Angle with Tom McMillen,” this episode, featuring college sports attorney, Mit Winter, (Attorney at Kennyhertz Perry) covering all things Alston case.

If you missed it, in August, the NCAA adopted emergency legislation ending association-wide limits on education-related benefits that Division I men’s and women’s basketball and Football Bowl Subdivision (FBS) student-athletes can receive. The new legislation stems from a ruling upheld by the 9th U.S. Circuit Court of Appeals after the case was brought by former student-athletes, including former West Virginia football player, Shawne Alston. If you recall, LEAD1 also hosted one of its “AD and Deputy AD Town Halls” last month on this ruling, but, in case you missed it or want to learn more, here are some things you should know about the case from Winter:

  1. In the beginning of the interview, Winter describes the procedural history of the case, which is important because although this case was filed years ago, there has been a lot of action since March 2019. In a nutshell, the District Court (trial court) stated that the NCAA cannot limit the amount of educationally-related benefits that NCAA institutions and conferences can award to student-athletes. The Ninth Circuit (appeals court) affirmed this and the NCAA appealed to the Supreme Court of the United States (SCOTUS) seeking a stay so that the Ninth Circuit ruling would not go into effect until the SCOTUS ruled. The SCOTUS denied the request so the NCAA implemented the injunction as emergency legislation.
  2. With respect to the impact on LEAD1 schools, conferences and institutions can now provide:
    • Unlimited scholarships to student-athletes to attend vocational school (in addition to full grant-in-aid);
    • Unlimited post-eligibility scholarships to former student-athletes for undergraduate and/or graduate school;
    • Unlimited benefits related to computers, science equipment, musical instruments, tutoring, studying abroad, paid post-eligibility internships; and
    • Academic and graduation awards up to NCAA bylaw restrictions (according to Winter, this annual figure could be close to $7,000)
  3. Institutions and conferences can set their own limits on these awards. Of course, conferences cannot collude by agreeing together to set limits, but a school could, for example, guarantee a student-athlete a post-eligibility internship for meeting certain minimum academic requirements. As written, these parameters are fairly broad, so institutions could set various minimum standards and use this in recruiting. In other words, conferences could set limits for their institutions, but if they do not, institutions have the discretion to set their own limits.
  4. It is important for LEAD1 schools to recognize that Title IX still applies (that may not be obvious). LEAD1’s policy team will continue to seek guidance on this and possible name, image, and likeness (NIL) rule changes in its continued conversations with the Office of Civil Rights (OCR), located in Washington, D.C., which administers Title IX. Until then, LEAD1 institutions should continue to seek guidance from inside and outside counsel.
  5. LEAD1 institutions that begin to draft their own policies and guidelines should analyze not only the new NCAA legislation, which can be found on LSDBI (NCAA’s database), but also the actual injunction from the Ninth Circuit (all of these items can be sent to you upon request to a LEAD1 staff member).

More on NCAA enforcement implications as it relates to Alston, and the new Nebraska NIL law (which is different than the already passed California, Florida, and Colorado laws) can be found in the interview recording.