Do student-athletes finally own their name, image, and likeness? Or will it be up to the states to decide?

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By: Stephanie Verdoia

The National Collegiate Athletic Association’s (NCAA) bylaws have established requirements for student-athletes to remain eligible and compete in collegiate athletics as “amateur” athletes, and not “professional” athletes. Article 12.5, one of the more controversial bylaws created by the NCAA to maintain this distinction, restricts employment and compensation for student-athletes. To maintain amateur status, student-athletes essentially cannot receive any compensation based on their name, image, or likeness as an athlete. This amateurism model has generated consistent litigation throughout the years accusing the NCAA of violating antitrust law, violating federal minimum wage laws, and depriving student-athletes right of publicity.

The “One-Sided” Nature of the Relationship Between Student-Athletes and the NCAA

In 2014 Ed O’Bannon, a former UCLA basketball player, sued the NCAA, Electronic Arts, and College Licensing Company, for creating a popular video game using his name, image, and likeness. This class action brought right of publicity claims –which entails violating an individual’s right to commercially control their image and identity– and antitrust claims challenging the NCAA’s bylaws. After settling the publicity claims with Electronic Arts and College Licensing Company, the Ninth Circuit Court of Appeals overturned the decision of District Judge Claudia Wilken and held the NCAA was fairly compensating student-athletes with the price of tuition, but affirmatively stated it was an unlawful restraint of trade. This result, upholding the NCAA’s bylaws and amateur model, seemed to narrow possible litigation strategies but publicized the “one-sided” nature of the relationship between student-athletes and the NCAA.

Since 2014, college athletics continues to increase in size and value. The NCAA’s amateur model was based in a time before colleges had sponsorship agreements or TV contracts which generated millions of dollars. As technology creates an opportunity for individuals to self-promote, and 72% of major brands use paid Instagram users to “influence” products, opportunities for student-athletes to be paid for promotional activities appear prevalent and lucrative. The “one-sided” nature of the NCAA’s model exposed in the O’Bannon case is now being evoked by well-known athletes to push this cause forward. Katelyn Ohashi, a former UCLA gymnast who received over 60 million views on a YouTube video, along with Lebron James have publicly spoken in favor of new legislation which addresses this issue in California.

New Era of Legislation

The O’Bannon decision arguably maintained the NCAA’s status quo until 2019. New court rulings and new legislation have ushered in an era challenging scholarship caps, compensation, and publicity rights for athletes. Specifically, California passed the Fair Pay to Play Act which legally allows student-athletes to obtain agents and receive compensation for businesses using their identity. With many other states proposing similar legislation (including Washington), the Fair Pay to Play Act seemed to prompt the NCAA to change its policy regarding a student’s ability to benefit from their position as a student-athlete.

On October 29, 2019, the NCAA Board of Governors unanimously voted to allow students to benefit from the use of their name, image, and likeness “in a manner consistent with the collegiate model.” No later than January 2021, three divisions within the NCAA are expected to update relevant bylaws “for the 21st century.” The Board proceeded to detail that changes should occur with certain priorities in mind, including; education, student-athletes equity with non-athlete students, distinctions between college and professional opportunities, impermissible compensation for performance, the recruiting environment, and preventing inducement for athletes to transfer institutions.

Since the NCAA is committed to maintaining amateurism and the collegiate model, it is yet to be seen if the bylaws will be updated in ways strong enough to preempt proposed state legislation. Previously Article 12.5 of the NCAA bylaws heavily regulated promotional activities, trademarks, logos, and advertisements, even including the laundry label of institution uniforms. While the NCAA, nonprofit and educational organizations, can use an athlete’s name, image, and likeness, it is only acceptable at rare times, like during NCAA events.  Currently, it is always prohibited for purely commercial use, which indicates any updates regarding compensation for the use of name, image, and likeness will reverberate through many NCAA bylaws.

Possible Outcomes

 If states choose to maintain their own legislation in the face of new NCAA bylaws, many conflicts could arise. First, the NCAA may ban colleges from competing in championships if they are in conflict with the NCAA model. Additionally, if states continue to pass varying legislation, and this is likely, it could actually give the NCAA an upper-hand in future litigation. The NCAA could effectively make the case for undue interference with interstate commerce, an argument which the NCAA used to win a lawsuit in 1993. However, if a number of states continue to pass legislation challenging the NCAA’s amateur model, as seen this fall, the NCAA could be motivated to continue increasing benefits and compensation to student-athletes. Ultimately, federal legislation would end this back-and-forth game, and has been introduced in Congress.

Although increasing in size and value, there is debate regarding the actual impact spurred by paying student-athletes for their name, image, and likeness. High profile men’s basketball and football players would unquestionably start receiving endorsements as the NCAA’s biggest revenue earners. Yet, with the proliferation of smaller promotional deals through social media influencing, it does have the potential to reach every student-athlete regardless of sport or gender. It appears this will dramatically change recruiting, and the day-to-day lives of student-athletes.

There are few answers for the future, but it is clear that the lives of student-athletes will look considerably different within the next few years. Whether a few states pass legislation, or an entire overhaul of the NCAA amateur model occurs, it is clear that litigation will continue to fill the court system to determine exactly what the relationship should be between the NCAA and student-athletes.

 

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