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DII Presidents Council advances name, image and likeness proposals

Members will vote on legislation at 2021 Convention

The Division II Presidents Council on Wednesday voted to advance several legislative proposals to the 2021 NCAA Convention, including concepts that would permit student-athletes to benefit from their name, image and likeness. The council also supported a legislative proposal that would allow nonqualifiers access to both athletics aid and practice.

Additionally, the Presidents Council voted to cancel Division II’s seven fall 2020 championships due to the operational, logistical and financial challenges presented by the COVID-19 pandemic.

The legislative proposals approved by the Presidents Council will be voted on at the NCAA Convention in January via Division II’s one-institution, one-vote legislative process. Any legislative proposals passed at the Convention would take effect Aug. 1, 2021.

Because of the requirement that all proposals for the Convention be submitted by Sept. 1, the name, image and likeness concepts approved by the Presidents Council will return to the Division II Administrative Committee in legislative form for approval of the language at its Aug. 26 meeting.

“While our discussion on the NIL proposals noted with some apprehension that these concepts are a shift from our current legislation, we acknowledged the Legislation Committee’s thorough work in developing them that included vast membership input and prioritized student-athlete voice,” said Sandra Jordan, chancellor at South Carolina Aiken and chair of the Division II Presidents Council. “We believe these opportunities can occur in a manner that is consistent with the NCAA’s core values, mission and principles, while prioritizing student-athlete well-being and ensuring that students also continue to focus on completing a degree. The recommended administrative framework for these changes ensures that the legislation will be transparent and enforceable, which falls in line with the Board of Governors’ principles.”

The name, image and likeness recommendations fall into two categories: activities related to student-athlete businesses and the promotion/endorsement of third-party products and services. They are detailed below:

  • Student-athlete work product: Permit student-athletes to use their name, image and likeness to promote their own athletically related work product (for example, athletics apparel, athletics equipment, writing a book about the impact of athletics on their life).
  • Endorsement of third-party product or service: Permit student-athletes to promote athletically or nonathletically related products or services, including, but not limited to, modeling noninstitutional athletics apparel and equipment, and establishing a monetized media platform, subject to school policies.
  • Autographs: Permit student-athletes to be paid for autographs while not representing their school, either in conjunction with an endorsement opportunity or otherwise independent of their school.
  • Appearances: Permit student-athletes to be paid for appearances at commercial businesses and charitable, educational or nonprofit agencies, subject to school policies, and permit student-athletes to include their athletics status and ability in any such promotions.
  • Sale of merchandise/memorabilia: Permit student-athletes to sell athletics apparel, used equipment and awards provided by the school at any time in their career.
  • Crowdfunding for extreme circumstances: Permit student-athletes, their families and friends to organize fundraisers for student-athletes or their family members in extreme circumstances beyond the control of the student-athlete (for example, house fire, medical needs), while maintaining current restrictions on fundraising for education-related items of need (for example, tuition, laptop).
  • Fees for private lessons: Permit student-athletes to promote their availability for private lessons. If school facilities are used, student-athletes must follow all applicable institutional processes for renting facility space in a manner consistent with that used by the general public.
  • Fees for camps and clinics: Permit student-athletes to operate their own camps and clinics. If school facilities are used, student-athletes must follow all applicable institutional processes for renting facility space in a manner consistent with that used by the general public.
  • Allowing commercial business to promote student-athlete attendance at school fundraisers: Permit a commercial business to advertise the presence of student-athletes at the establishment for a school fundraiser.
  • Licensing of student-athlete’s name, image and likeness, unrelated to work product: Permit student-athletes to license their name, image and likeness for commercial products unrelated to their work product (for example, student-athletes would be allowed to license their nickname on commercial products sold by a third party).

Further, consistent with the Board of Governors’ principles that any legislative changes be transparent and enforceable, the Presidents Council voted to recommend the following administrative framework for the concepts above:

  • Permit schools to assist student-athletes on name, image and likeness activities but not arrange such opportunities. Some permissible examples would include providing education on applicable NCAA rules, helping a student-athlete evaluate any compliance concerns with a particular opportunity, assisting with reporting expectations and offering resource materials to help the student-athlete evaluate and select professional service providers. A school would be permitted, but not required, to establish a name, image and likeness counseling panel similar to the currently permissible professional sports counseling panel. Business activities that are developed as a result of a student-athlete’s coursework would be exempt from the restrictions on institutional involvement.
  • Require student-athletes to obtain approval to use institutional marks for any commercial purposes through the normal process used by any potential license.
  • Prohibit student-athletes from using their name, image or likeness to promote products or services not permitted by NCAA legislation, including sports wagering and banned substances.
  • Prohibit student-athletes from missing class to participate in activities related to use of their name, image and likeness.
  • Permit schools to determine how to appropriately educate their student-athletes, boosters and other constituent groups on name, image and likeness rules.
  • Require reporting of name, image and likeness activities on an annual basis. The Division II Legislation Committee recommended that a template form be created at the national level but added that schools would be permitted to establish their own forms based on institutional needs and applicable state laws. Schools could choose to require reporting on a more frequent basis. The committee also expressed support for exploration of a potential third-party administrator to oversee reporting to reduce the burden on Division II athletics departments.
  • Permit prospective student-athletes to retain professional service providers (for example, agents, tax advisors, marketing consultants) for name, image and likeness activities, as well as professional athletics opportunities, before initial full-time enrollment at a Division II school. Any agreement related to professional sports opportunities would have to be terminated upon enrollment at a Division II institution. School employees would not be permitted to serve in a professional service role for a prospective student-athlete.
  • Permit student-athletes to retain professional service providers needed for name, image and likeness activities. Student-athletes, however, would be prohibited from hiring an agent for the purpose of a professional athletics opportunity. These service providers would be prohibited from providing anything that would constitute an extra benefit.

Access to aid, practice proposal

The Presidents Council voted to sponsor a legislative proposal for the 2021 NCAA Convention to allow access to institutional athletics aid and access to practice to all incoming freshman student-athletes and two-year college transfers, regardless of their initial-eligibility status.

This recommendation is an expansion of a proposal the Presidents Council approved in April, which did not include access to practice. Feedback from the national Division II Student-Athlete Advisory Committee and Coaches Connection groups factored into this addition to the proposal. Part of those groups’ rationale centered on the importance of student-athletes staying connected to their teams and how that can factor into mental health.

The proposal, which came from the Division II Academic Requirements Committee, would amend current Division II eligibility legislation in a permissive fashion.

Currently, incoming freshman student-athletes and two-year college transfers who are nonqualifiers are not permitted to receive athletics aid during their first academic year in residence, unless an initial-eligibility waiver is approved. During the last six certification cycles, however, 97% of all such waivers were granted for at least athletics aid. Additionally, 65% of waivers for nonqualifiers allowing access to practice were granted. Given the high percentage of approvals, this legislative proposal would permit schools to provide institutional athletics aid and practice without a waiver. Providing such aid and/or access to practice would be left to institutional discretion. Any athletics aid provided to a nonqualifier would still count toward team equivalency limits.

Two proposals will move forward for a membership vote at the 2021 NCAA Convention. The first proposal would provide nonqualifiers access to athletics aid and practice. The second proposal would provide access to athletics aid only. The membership will vote on the athletics-aid-only proposal only if the first proposal is defeated.

Nullification Penalties

The Presidents Council also modified the nullification policy in all sports to assess a “two-for-one” penalty against teams that have an ineligible student-athlete participating.

Under the new policy, effective immediately, a team will lose two contests for every one in which an ineligible student-athlete on its roster competes. The previous policy assessed a “one-for-one” penalty in such situations.

Division II adopted the nullification policy in 2006 with the goal of ensuring equitable and fair access to NCAA championships. Nullification penalties are assessed at the time of postseason selection and may impact the individual’s and/or team’s opportunity for selection to postseason competition.

The Division II Championships Committee recommended the new policy as a further deterrent, particularly in sports that have a higher number of contests where the previous penalty often had only a minimal impact on a team’s placement in the bracket (for example, just one seeding line). The “two-for-one” structure could have a potentially significant impact on not only a team’s seed line but also its overall qualification status. The council and committee also noted that, in cases where a clerical error or some other inadvertent miscue caused the violation, there remains an appellate process for schools.

Appointments

  • Approved the appointment of Courtney Lovely, director of athletics at Palm Beach Atlantic, as the new vice chair of the Management Council effective Sept. 1. Lovely is a current member of Management Council and will replace the current vice chair, Jim Johnson, director of athletics at Pittsburg State.
  • Approved the appointment of Harry Stinson III, director of athletics at Lincoln (Pennsylvania), as the new Management Council independent/at-large representative, effective immediately. His term will run through the 2025 NCAA Convention.
  • Approved the appointment of John Gotanda, president of Hawaii Pacific, as the new Presidents Council representative from Region 4 of Division II.