The NCAA’s Board of Governors unanimously voted on Tuesday “to permit students participating in athletics the opportunity to benefit from the use of their name, image, and likeness in a manner consistent with the collegiate model.”  In doing so, the Board directed each of the three NCAA divisions to update relevant bylaws and policies immediately, but no later than January 2021.

This decision is a significant policy shift for the NCAA, which has been historically adamant about prohibiting student-athletes from being paid to preserve its amateurism rules.  In fact, the Board sent a letter to California Governor Gavin Newsom in September opposing the state’s “Fair Pay to Play Act” allowing college athletes to sign endorsement deals and hire agents.

Michael V. Drake, chair of the Board and president of The Ohio State University, said, “We must embrace change to provide the best possible experience for college athletes.”  He further stated:

“Additional flexibility in this area can and must continue to support college sports as a part of higher education.  This modernization for the future is a natural extension of the numerous steps NCAA members have taken in recent years to improve support for student-athletes, including full cost of attendance and guaranteed scholarships.”

The Board identified specific principles and guidelines for this “modernization,” including the direction that student-athletes must be treated similarly to non-athlete students, the priorities of education and the collegiate experience must be maintained, and there should be a clear distinction between collegiate and professional opportunities.  The principles also emphasize the enhancement of diversity, inclusion, and gender equity.

An NCAA working group will continue gathering feedback through April and ultimately refine its recommendations on the principles and regulatory framework. 

Meanwhile, this drastic policy shift leaves open many immediate questions for institutions of higher education.  For example:

• Payment – Who pays?  Will there be any limits on who the payor can be?
• Recruiting – What impact will this directive have on the recruitment of student-athletes?
• Title IX – When male student-athletes inevitably get paid more, will there be a fight for equal pay?
• Financial Aid – Will payments for name, image, and likeness reduce a student-athlete’s “need” for financial aid?
• Income – Will legislators endeavor to treat scholarships as taxable income now that student-athletes can be compensated for their name, image, and likeness?

Saul Ewing Arnstein & Lehr will keep you updated as the legal impact of this historic change in NCAA policy develops.