NCAA Takes Step Toward Letting Student-Athletes Profit from Likenesses
NCAA President Mark Emmert expressed last month that he was open to the idea of college athletes being compensated for the use of their names and likenesses — which came as a surprise, given the organization’s oft-stated commitment to “amateurism.”
Now the governing body for college sports is taking the next step in that direction, forming an exploratory committee to look at how its rules could be modified to allow student-athletes to get a piece of the action.
Last month, after U.S. Rep. Mark Walker, R-N.C., introduced a bill to end NCAA restrictions on athletes’ publicity rights, Emmert said, “We’ve talked to the congressman and tried to understand his position. There is very likely to be in the coming months even more discussion about the whole notion of name, image and likeness (and) how it fits into the current legal framework.”
Now we know the framework for that discussion.
Emmert and the NCAA Board of Governors announced Tuesday that Ohio State senior vice president and athletic director Gene Smith and Big East commissioner Val Ackerman will head up the NCAA Board of Governors Federal and State Legislation Working Group in order to determine how to proceed.
“This group will bring together diverse opinions from the membership — from presidents and commissioners to student-athletes — that will examine the NCAA’s position on name, image and likeness benefits and potentially propose rule modifications tethered to education,” Ackerman said in a statement.
“We believe the time is right for these discussions and look forward to a thorough assessment of the many complexities involved in this area,” she said.
The board did, however, draw one firm line before even getting started.
It said that under no circumstances should efforts to allow players to profit from licensing agreements be construed as equivalent to being paid to play intercollegiate sports. Just as pro athletes aren’t considered to be getting a salary from their teams for their shoe deals or other endorsements, neither will college players be seen as getting a salary from their schools, the board said.
“While the formation of this group is an important step to confirming what we believe as an association, the group’s work will not result in paying students as employees,” Smith said in a statement.
“That structure is contrary to the NCAA’s educational mission and will not be a part of this discussion,” he said.
Of course, that line is blurred by the fact that any licensing deal is likely to include something like EA Sports’ NCAA Football video games, the popular sidekick to the Madden NFL franchise that suspended production after a lawsuit that started this entire controversy.
If Electronic Arts or any other company uses the complete rosters of the colleges in that game or another, then it stands to reason that any player on those rosters would get at least a piece of the licensing fee paid.
Along the same lines, the coveted position of the cover athlete seems likely to carry a windfall that could prove lucrative for the player.
The working group has been given two deadlines; the first, in August, will require it to update the NCAA on progress made toward crafting workable legislation, with the final report due in October.
A federal antitrust lawsuit from Ed O’Bannon, formerly of UCLA basketball, was responsible for the divestiture of the video game industry from college sports.
In 2018, Central Florida kicker Donald De La Haye gave up his scholarship when forced to choose between his football scholarship and his YouTube channel. This was particularly vexing since being in college does not preclude a student from using his name and likeness as a tool of commerce.
Olivia Jade Giannuli, daughter of “Aunt Becky” Lori Loughlin, gained a fair bit of infamy for using her ill-gotten admission into USC as just another marketing tool on her popular “influencer” YouTube channel and Instagram account, and like Giannuli, De La Haye had pre-existing fame that naturally followed him to college.
“It is hard for the public, and frankly for me, to understand what can be allowed within the college model — for the life of me I don’t understand the difference between Olympic payments and participation in ‘Dancing with the Stars’ — and what can’t be allowed without opening the door to professionalizing college basketball,” former Secretary of State Condoleezza Rice said in 2018, alluding to other cases where athletes’ eligibility came into question over compensation not strictly tied to their participation in sports within the NCAA milieu.
In addition to all this, the NCAA is trying to stay a step ahead of Congress.
“Signing an athletic scholarship with a school should not be a moratorium on your rights to your name, image, and self-worth,” Walker said of his legislation.
The NCAA wants to avoid that, not only for the short-term loss of autonomy but for the slippery slope down which treating sports participation in college like every other form of labor in America, with its attendant wage and worker-protection laws, would blow up the amateurism model.
In point of fact, the NCAA has always vigorously fought those very challenges from the student-athletes themselves.
We will know more in October when the commission releases its report, but for now, this may be the first step toward a brave new world for high-profile college athletes.
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