NCAA First Ever NIL-Era Sanctions

February 2023: the month in which we celebrated Black History; the month of love; and the month in which the National Collegiate Athletic Association (“NCAA”) issued its first-ever penalties for name, image, and likeness (“NIL”) violations. Ten (10) months since the inception of the Interim NIL Policy, the NCAA found that the head coach of the University of Miami, Florida (hereinafter, “Miami”) women's basketball team violated the NCAA rules by facilitating impermissible contact between two team prospects and a booster, as well as violating regulations on publicity before signing. The NCAA determined that there were violations as it relates to the rules on a head coach’s responsibility.

Background

Since adopting the Interim NIL Policy in July 2021, the NCAA has provided limited guidance in the form of memoranda to institutions. Although NIL activity is noted to be substantially beneficial to many student-athletes, a significant number of athletic directors remain concerned that NIL opportunities are being used as a means of improper recruiting inducement of prospective student-athletes.^[2] From the NCAA’s perspective, the challenge in the enforcement of the policy stemmed from the difficulty in collecting the appropriate evidence to substantiate such claims of the use of NIL as improper recruitment inducement.^[3]

The Violations

The NCAA Division I Committee on Infractions (referred to hereinafter as the “NCAA”) found that Miami’s women’s basketball head coach, Katie Meier (“Meier”), violated several NCAA rules during her recruitment of  Haley and Hanna Cavinder (“the Cavinder Twins”). To begin, the NCAA determined that Meier engaged in impermissible contact between the two prospects and a booster, John Ruiz (“Ruiz”), a violation of the NCAA rules.  Permissible contact includes any recruiting contact with a prospective student-athlete or their family made only by authorized institutional staff members.^[4] Boosters, who are considered athletics representatives in the NCAA Bylaws, are explicitly prohibited from contacting student-athletes on behalf of the institution.^[5] Additionally, an institution or its athletic representatives shall not be involved, directly or indirectly, in making, giving, or offering arrangements of benefits to a prospective student-athlete or their family members unless it is expressly permitted by the NCAA regulations.^[6] Violations of these bylaws were illustrated by Meier during the recruitment of the Cavinder twins to the Miami women’s basketball program. The Cavinder twins are star basketball players who not only have had great success on the court but as social media influencers as well. The former Fresno University women’s basketball players began exploring transfer opportunities in March 2022, setting their sights on Miami.

Ruiz and Meier met at a Miami event for staff, administrators, donors, and prospective donors, where subsequent text messages ensued between the two. Meier asked an assistant coach to contact the Cavinder twins to explain that Ruiz was a legitimate businessman, which likely led to the twins agreeing to meet Ruiz.^[7] Ruiz previously made contact with the Cavinder twins’ agent, to which the agent responded, “[g]iven their schedules we are going to hold off on a meeting for now and will look to follow up in a few weeks.”^[8] On April 13, 2022, two days before their official visit to Miami, Ruiz hosted the Cavinder twins and their family for a dinner at his home, where he promoted attending Miami. The NCAA held that because Ruiz’s contact with the Cavinder twins was facilitated by Meier, this is expressly prohibited by the NCAA bylaws and impermissible contact.

The NCAA also found Meier violated NCAA rules on publicity. An improper publicity violation includes commenting on specifics in the recruitment of prospective student-athletes.^[9] Before the signing of a prospective student-athlete, an institution may not make general comments on the prospect’s ability or potential contribution to the team.^[10] Additionally, the institution shall not publicize the prospect's visit to the institution’s campus.^[11] During the recruitment process, Meier was in contact with Ruiz, a prominent businessman and booster of Miami, who was known for providing Miami athletes with NIL opportunities. Ruiz showed interest in working with the Cavender twins. Meier publicized the Cavinder twins’ upcoming official visit to Ruiz, and agreed to make the connection to Ruiz before then. Meier then provided Ruiz with the Cavinder twins’ profiles prepared by the Miami staff, which are created for the institution's staff members in preparation for official visits. Here, the NCAA found that by providing Ruiz with information specifically as it relates to the prospects’ visit to Miami, there was a violation of Bylaw 13.10.1.4. Further, providing Ruiz with confidential profiles that are prepared for the coaching staff of Miami on the prospects insinuates providing comment to the prospects’ contributions to the team, violating Bylaw 13.10.1.1.

Every head coach has a responsibility to maintain an atmosphere of compliance within the program and to monitor the activities of all institution staff members that report into the coach, either directly or indirectly.^[12]  Meier violated the responsibilities of a head coach as a direct result of the impermissible contact and publicity violations. Additionally, Meier failed to consult the compliance team at Miami to ensure that her conduct was proper and in the best interests of the institution, leading to the violations. Meier acknowledged her involvement in the violations, assumed responsibility for her failure to maintain an atmosphere of compliance and failure to identify potential NCAA violations during the recruitment process of the Cavinder twins.

Moving Forward

The NCAA and Miami negotiated an agreement, coming to an agreed-upon finding of facts, violations, and violation levels. The parties came to a resolution for a set of penalties, including a one-year probation, a financial penalty of $5,000 plus 1% of the women’s basketball budget, and several recruiting restrictions to be applied during the 2022-23 year.^[13] Only the institution and Meier received mitigated Level II penalties, with none for the Cavinder twins. In general, responsibility for NIL violations will remain with the institution and not the student-athlete. Although the negotiated agreement does not have any precedential effect, it is informative of what types of punishments could be expected for future violations.

One might ask what this means for the world of collegiate NIL moving forward. It would appear that the NCAA has difficulty in collecting evidence to address and enforce its NIL policy, which became effective January 1, 2023 as Bylaw 19.7.3. Now, when there are allegations of NIL violations, a presumption arises that a violation did in-fact occur. The accused institution carries the burden of proof to show and proffer evidence that a violation did not occur. The newly adopted bylaw further expands the evidentiary grasp, allowing for circumstantial evidence to substantiate claims. This change arose after the investigation began with  Miami, but could have resulted in an easier enforcement process for the NCAA. With this change, and Miami as an example, it may be assumed that the NCAA is aware of the reality -NIL opportunities are likely being utilized as a recruiting tool.