The NCAA is coming for boosters and collectives. Since the inception of NIL, the NCAA has said it would hold schools, not players, accountable for NIL violations. True to its word, the NCAA's punishment here is directed at the university. More recently, and particularly under new President Charlie Baker, the NCAA has indicated a desire to likewise hold boosters and collectives accountable for NIL violations. In this case, the NCAA did just that, to the greatest extent it could. Since the NCAA is a membership organization, its authority is limited to those member institutions. Boosters and collectives are generally outside the NCAA's reach. However, the NCAA nonetheless targeted those entities by requiring disassociation from the university for three years. This likely represents the most significant action the NCAA can take against boosters and collectives, and the NCAA did not hold back imposing punishment in its first NIL enforcement action.

Timing is key. The NCAA has lamented the difficulty in proving that a particular NIL opportunity constitutes an "inducement" to a student-athlete such that it could be found to violate the interim policy. However, in January 2023, the NCAA changed its enforcement standard to permit violations to be "presumed" based on circumstantial evidence alone. We have speculated that when the NCAA took NIL enforcement action it would follow the lead of other investigatory bodies that seek to prove an inducement relationship by pointing to the timing of a particular benefit closely coinciding with a commitment to a particular school. That appears to have been a key component of the NCAA's case here, as the NIL offer was made before the student-athlete committed to the school. Interestingly, earlier this week the NCAA Division I Council announced a proposal that would outright ban these types of NIL communications (e.g., before the student-athlete signs a letter of intent, enrolls at the school, participates in practice, etc.). Clearly, the NCAA is scrutinizing the timing of NIL deals, and it appears to be predisposed to believing offers that come before a student-athlete commits to a school are more likely to constitute an improper inducement. Schools should be wary of this and would be wise to dedicate additional compliance attention to pre-commitment contacts by boosters and collectives.

There appears to be real benefit to admitting wrongdoing. The NCAA and the university resolved this matter through the NCAA's negotiated resolution process. This required the university to cooperate with the investigation and admit wrongdoing, and also forgo the opportunity to try to prove there was no violation at a hearing. By doing so, the university was able to avoid some of the more severe penalties the NCAA can levy against institutions (e.g., a bowl ban, a suspension for the head coach, or more significant scholarship forfeitures). Given the apparent evidence the NCAA was able to gather, and the fact that the NCAA's new (and less stringent) enforcement standard applies here, one or more of those severe penalties could certainly have been in play. It is not unreasonable to believe that the university was able to avoid them by opting for the negotiated resolution route. Other institutions who inevitably face NIL investigations should likewise consider that route in consultation with legal counsel.

The more lenient enforcement standard will lead to more enforcement actions. Prior to relaxing the NIL enforcement standard to permit NIL findings based on circumstantial evidence alone, the NCAA vocally lamented the difficulty it was having in identifying and obtaining the necessary evidence to prosecute NIL cases. That was certainly one of the messages the NCAA delivered loud and clear when it investigated Miami and its women's basketball team for potential NIL violations, yet was only able to make a minor recruiting violation stick. Some have speculated that the case against Miami led the NCAA to relax the charging standard to make it easier to enforce NIL rules without subpoena power or authority over the entities (e.g., collectives) that had much of the necessary evidence. In a sense, the allegations against the university were not all that dissimilar to those against Miami. But the outcome was very different. That can be attributed to the more lenient charging standard. If the NCAA is to be believed, the biggest obstacle standing between the organization and more substantial NIL enforcement was its difficulty obtaining evidence. Given the NCAA's success in this case against the university, it may be that the tide has turned. If so, we should expect to see significantly more enforcement actions in the near future.