VII. The End of Voluntary NCAA Rulemaking on NIL

The NCAA, through the Working Group and the Board of Governors, had promised NIL rules changes by January 2021 to coincide with the NCAA’s annual convention.

The NCAA Division I Council drafted proposed changes—finalized in early November 2020—for presentation and review at the convention.

However, in early January 2021, the NCAA abruptly and disingenuously ended its voluntary rules changes on NIL.

Two events led to this decision.

First, the NCAA and Power 5 lost their Republican political advantage in the Senate after the 2020 elections and the January 2021 special elections in Georgia. The NCAA and Power 5’s congressional campaign in 2020—through four Senate hearings—ran through Republican senators.

Second, on December 16th, 2020, the US Supreme Court accepted the Alston case for review. The NCAA—not the athletes—appealed the case to the Supreme Court. Alston provided the NCAA and Power 5 a realistic shot at antitrust immunity—a coveted prize that was increasingly unlikely in Congress given the flip in the Senate.

Moreover, the way the issues were framed in the Supreme Court appeal (the athletes sought merely to keep in place the limited education benefits remedy provided by the district court rather than challenge all NCAA amateurism-based limits), the NCAA essentially had a free shot at antitrust immunity.

On January 8th, 2021, just days after the Georgia special elections placed the Democrats in technical control of the Senate, a news story broke that Department of Justice Antitrust Division head Makan Delharim had directed the NCAA to cease voluntary rulemaking on NIL and transfer issues due to concerns that the proposed changes raised antitrust concerns.

Media articles quoted from letters between Delharim and NCAA President Mark Emmert that suggested the NCAA had no choice in the matter. However, neither the media articles nor the letters identified specific antitrust concerns. 

On January 11th, 2021, as the convention got underway, the Divisions quickly “voted” to terminate voluntary rulemaking, citing the claimed directive from the Justice Department.

In a podcast interview on June 24, 2021, Mr. Delharim said he never told the NCAA to stand down on voluntary rulemaking.

Delharim speculated that the NCAA ceased rulemaking on NIL (and transfers) because of the Supreme Court appeal in Alston.

He said the NCAA had a “free shot in the goal” in Alston on antitrust immunity.

Importantly, Delharim said if the NCAA got antitrust immunity in Alston, it wouldn’t have to do anything on NIL because its NIL compensation limits couldn’t be challenged in court.

Delharim’s observations highlight the NCAA’s cynical use of “NIL compensation” as a guise for protective federal legislation. 

To this date, the NCAA has not changed a word of Bylaw 12 that prohibits NIL compensation.

The evidence suggests the NCAA never intended to.