The NCAA Division I Council is expected to table a vote on name, image and likeness legislation scheduled for this Monday, multiple sources tell CBS Sports. The delay would come amid several legal challenges, a pending Supreme Court case and changes coming to the White House and U.S. Senate.
The NCAA Convention opens next week in what promises to be a transformative year for the 115-year-old collegiate sports governing body. The NCAA must consider not only NIL legislation this week but also one-time transfer legislation all while simultaneously fighting legal challenges on several fronts.
Two high-ranking NCAA sources told CBS Sports it is their expectation the vote on NIL rights will be tabled. Furthermore, NCAA president Mark Emmert told the Justice Department on Saturday that he has "strongly recommended" that votes on NIL rights and a one-time transfer exemption for all athletes be delayed.
"We believe, as courts have regularly held, that our current amateurism and other rules are indeed fully compliant [with federal antitrust law]," Emmert wrote in a letter to the Justice Department obtained by the New York Times. "Whenever we consider revisions to the rules, however, we of course receive input from many interested parties, and we welcome your invitation to consult with the department so that we can hear and fully understand its views as well."
The Justice Department originally weighed in Friday. USA Today reported that assistant attorney general Makan Delrahim was concerned the NCAA's approach to NIL "may raise concerns under antitrust laws." Delrahim is a Trump administration appointee who has 11 days left on the job. He told USA Today those views may carry over to the Biden administration.
The Sherman Antitrust Act was put into law in 1890. It prohibits entities that "unreasonably restrain trade or commerce." The Sherman Act has been applied many times in sports to regulate fair play and organization.
Nothing will be certain until the 40-member council meets Monday. The council is a 40-person body responsible for day-to-day NCAA legislative and policy decision making. It has a representative from each of the 32 Division I conferences. Voting is weighted toward the 10 FBS conferences, and within that, the Power Five (ACC, Big Ten, Big 12, Pac-12, SEC).
If the FBS conferences vote as a group, they alone have the power to table the vote as they control 56.3% of the voting points. However, the Power Five cannot decide the issue on their own. Those conferences control only 37.5% of the total vote. If the agenda stays on schedule, the NCAA Board of Directors would consider ratifying the legislation on Thursday.
"I just don't think there is a rush to do anything on [NIL] right now," Tom McMillen, a former Congressman and the head of Lead1 Association, told CBS Sports. Lead1 is a group that represents Division I athletic directors.
"I do think it may be heading that way," said Shane Lyons of tabling the vote. Lyons is an NCAA Council member and the athletic director at West Virginia.
Tabling the vote is the preference of "a large swath" of conferences, according to one NCAA Council member who did not want to be identified.
"Tabling it on Monday should not be any indication it is not going to happen," that person said. "Tabling it on Monday is just really taking a pause to let all these significant bodies weigh in [with] their interpretation of what this should look like."
"The NCAA will get hammered if we don't have anything [with NIL], but it's the [Power Five conferences] that are by far leading the charge if it goes that way," one high-ranking source told CBS Sports. "If all 10 FBS conferences are in agreement, the weighted voting goes their way, and the rest don't have control of this. The [Power Five] has more power than the Group of Five, and the Group of Five has more than the rest of the other leagues."
Another reason for tabling NIL legislation is the aforementioned Supreme Court case. In December 2020, the highest court in the United States agreed to hear the NCAA's appeal of the Ninth Circuit Court's ruling that allows athletes broadened education-based benefits.
The benefits allowed by the lower-court ruling would "effectively create a pay-for-play system," the NCAA argued. Taken to its extreme, it could be stretched to give a school the ability to purchase a car for an athlete who lives off campus just so they can get to school. In theory, that would be a benefit "tethered" to education.
The Supreme Court rarely hears cases related to college sports, which adds urgency to the decision.
"There's been a lot of rumblings behind the scenes that the NCAA shouldn't do anything on NIL until the Supreme Court rules," one league commissioner told CBS Sports. "The thinking being: Why would we go out and set policies and procedures when the Supreme Court hasn't ruled on [the case]? Let's hear what they determine and develop policies based on how they rule."
Sources expect the case to be decided by June at the latest, which would give the NCAA time to incorporate it into NIL legislation that could still go into effect Aug. 1 for the 2021-22 school year. Such a timeline could also impact several state NIL laws that are set to go into effect.
Most pressing for the NCAA in the near term is the July 1 implementation of the Florida NIL law. That law would provide broader benefits for athletes than currently being discussed by the NCAA. Conceivably, schools in that state could have a recruiting advantage over schools outside Florida.
"It's about what is the appropriate time [to approve NIL legislation]," Lyons said. "Last year at the convention, Mark Emmert talked about there was no question that by this January that we would make a decision based on legislative cycles. I don't feel any different than that. However, a new issue has come into the picture that is the Supreme Court decision. How does that impact us? Do we need to act on this now?"
Even if the council recommends NIL legislation on Monday, the NCAA Board of Directors could delay implementation based on the numerous outstanding issues.
"Even if we adopt something on Monday, it's a half-baked cake," a council member said. "It's not fully baked. There's so many other things that could happen."
Another consideration: After the run-off elections in Georgia provided Democrats with two additional seats in the Senate, a majority in that body and now full control of Congress. NIL legislation from the NCAA was already set to take into account proposed NIL bills in Congress. However, the bills proposed by Democrats, in general general, provide more benefits to athletes than any proposed NIL legislation by the NCAA.
For example, Sen. Cory Booker (D-NJ) introduced the College Athletes Bill of Rights in December. It is one of four bills introduced in the last session of Congress.
While NIL is considered to have bipartisan support in Washington, D.C., the proposed bills -- four have been introduced in the last six months -- vary in how they benefit athletes.
"The calculus [the NCAA has] to make is the political sands have shifted dramatically," McMillen said. "I wouldn't be surprised if they table it and take a little more temperature reading on NIL. I don't think they want to put something out there that's dead on arrival. … I just think this is going to take a long time."
The NCAA has already said it needs an antitrust exemption from Congress to properly implement its version of NIL. That exemption would ideally keep the NCAA from being sued if any part of NIL legislation hinted at capping athlete compensation.
That's essentially how we got to this point. O'Bannon v. NCAA alleged that the former UCLA basketball player's image on a video game violated antitrust laws because of the NIL bylaws preventing athletes from capitalizing on name, image and likeness. Other lawsuits sprung from that action.
"It's the logic that these things need to get settled before you get anything done [with a vote]," that anonymous council member said. "There's two schools of thought. Do it now, make adjustments and Congress weighs in. The counter argument to that is you run a lot more risk if Congress scrutinizes everything that gets passed."
After years of debate and the NCAA finally crafting NIL language, the NCAA Council was expected to forward to the NCAA Board of Directors for final approval one of the NCAA's broadest legislative changes in philosophy. Athletes would be granted what was essentially theirs at birth, the ability to profit off their fame and ability. The NCAA has faced withering pressure to grant those rights but stood firm maintaining their restriction was part of the "collegiate model" -- the NCAA's definition of amateurism.
If the legislation is delayed as expected, there will no doubt be criticism. The NCAA has long promised change, even suggesting the association led the way on NIL consideration. But as recent as September 2019, Emmert called NIL "an existential threat" to that collegiate model.
"Just because something might be tabled or action is deferred on [it] doesn't mean action can't be taken in coming months," a source related to the process told CBS Sports.
The NCAA has yet to choose a third-party administrator to oversee NIL. Part of that company's duty would be to help set market standards for compensation. However, if the NCAA even hints at limiting athlete income, it could find itself right back in court fighting another antitrust lawsuit. The NCAA has twice delayed selecting that third-party administrator perhaps because of NIL complications it currently faces. It also must hash out athletes' interactions with agents in the new NIL world.
"The Supreme Court could come out and say, 'The NCAA's model is fine,'" one source said. "There's a lot of [discussion] between ADs and commissioners. They're saying, 'Let's hold the phone, not do anything, even hire a third-party firm until we really know what we're facing.'"