By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
The board of governors of the National Collegiate Athletic Administration (NCAA) voted unanimously to being reforming its rules to allow college athletes to benefit from the use of their names, images, and likenesses.
This is a classic instance of getting out ahead of a trend and calling it a parade – or in other words, bowing to the inevitable.
Or is it?
First, the inciting incident: California governor Gavin Newsom signed legislation – the Fair Play to Pay Act – into law last month, to allow college athletes to profit from use of their names, images, and likenesses, permits them to obtain professional legal representation such as a sports agent, and not lose their scholarships if they receive income for their work. In addition, the legislation “prohibits California colleges from enforcing NCAA rules that prevent student athletes from earning compensation, and will prevent the NCAA from banning California universities from intercollegiate sports if their athletes sign sponsorship deals,” according to a press release issued by Newsom’s office.
Newsom summarized the rationale for the legislation in a signing statement:
SB 206 addresses an injustice in our higher education system.Other college students with a talent, whether it be literature, music, or technological innovation, can monetize their skill and hard work. Student athletes, however, are prohibited from being compensated, while their respective colleges and universities make millions, often at great risk to athletes’ health, academics, and professional careers. Moreover, due to their demanding academic and athletic schedules, student athletes are typically unable to work a part time job to help make ends meet. This bill simply and rightfully allows student athletes to to benefit from the multi-billion dollar enterprise of which they are the backbone. The bill does not change the fundamental promise we make to student athletes – that they can participate in athletics while also gaining a meaningful education and attaining a college degree that will boost their economic opportunities for a lifetime.
Newsom signed the bill during a special episode of the HBO show, Uninterrupted’s The Shop, in the presence of NBA star LeBron James – a major supporter of the bill – and UCLA gymnast Katelyn Ohashi, WNBA star Diana Taurasi, former UCLA basketball player Ed O’Bannon, sports agent Rich Paul, Uninterrupted’s CEO Maverick Carter, and the bill’s co-sponsors, state senator Nancy Skinner and Steven Bradford.
Take five minutes to watch the September video; it lays out key issues, from the point of view of the athletes.
Several other states, including Colorado, Florida, Illinois, Kentucky, Minnesota, Nevada, New York, Pennsylvania, and South Carolina, are considering similar legislation, according to Sports Illustrated Yet once California acted, the NCAA was forced to respond.
NCAA Text: Devil in the Details
The NCAA’s action, however, is vague – and includes wording that allow it ample opportunity to constrain its seeming concession. According to a press release, Board of Governors starts process to enhance name, image and likeness opportunities:
In the Association’s continuing efforts to support college athletes, the NCAA’s top governing board voted unanimously to permit students participating in athletics the opportunity to benefit from the use of their name, image and likeness in a manner consistent with the collegiate model. [Jerri-Lynn here: my emphasis.]
In the process of modernizing its rules and bylaws, the NCAA emphasized the following principles and guidelines:
- Assure student-athletes are treated similarly to non-athlete students unless a compelling reason exists to differentiate.
- Maintain the priorities of education and the collegiate experience to provide opportunities for student-athlete success.
- Ensure rules are transparent, focused and enforceable and facilitate fair and balanced competition.
- Make clear the distinction between collegiate and professional opportunities.
- Make clear that compensation for athletics performance or participation is impermissible.
- Reaffirm that student-athletes are students first and not employees of the university.
- Enhance principles of diversity, inclusion and gender equity.
- Protect the recruiting environment and prohibit inducements to select, remain at, or transfer to a specific institution.
James tweeted in the wake of the NCAA action:
Its a beautiful day for all college athletes going forward from this day on! Thank you guys for allowing me to bring more light to it. I’m so proud of the team at @uninterrupted bringing focus on this and to everyone who has been fighting this fight. Not a victory but a start! 🙏🏾
— LeBron James (@KingJames) 29 October 2019
It seems no one really trusts the NCAA, which has been stalling on the issue for years. Former Olympic skier Jeremy Bloom, advises treating the NCAA’s latest announcement with a large does of healthy skepticism, according to CNN. Bloom battled the NCAA during the 2000s to be allowed to play college football for the Colarado Buffaloes. Because he’d accepted endorsement money for skiing, he was deemed ineligible for his final two college football seasons.
— Jeremy Bloom (@JeremyBloom11) 30 October 2019
The NCAA in May convened a working group to hammer out new policy. According to ESPN:
The association’s board of governors gathered Tuesday morning in Atlanta on the campus of Emory University for its final regularly scheduled meeting of 2019. Ohio State athletic director Gene Smith and Big East commissioner Val Ackerman presented recommendations to the board members on how to modify the NCAA’s rules on students profiting from names, images and likenesses. Smith and Ackerman have spent the past several months spearheading a working group that was appointed to evaluate the issue.
However, Smith said Tuesday that the NCAA’s new rules would not follow the “California model” of a virtually unrestricted market. He said the working group would remain involved in sorting out the details of how to implement new rules and that the NCAA would likely stay involved as the group in charge of regulating future endorsement deals.
In addition to state legislation, federal legislation has been introduced to address the issue, so as to create a uniform pnational olicy. Over to ESPN:
U.S. Congressman Mark Walker (R-N.C.) proposed a bill to change the federal tax code in a way that would likely force the NCAA to give all student-athletes the right to sell their names, images and likenesses. The current proposal would create an unrestricted market for college athletes to seek endorsement deals. Walker said earlier this month that he hoped to bring his bill to a vote in early 2020, which could mean it would go into effect in January 2021.
Walker said Tuesday that he plans to continue moving forward with his proposed legislation to make sure the NCAA’s announcement this week turns into real action.
“We clearly have the NCAA’s attention. Now, we need to have their action,” Walker said. “While their words are promising, they have used words in the past to deny equity and basic constitutional rights for student-athletes.”
What Is to Be Done?
I’m not a big aficionado of college sports: no one grows up dreaming of being quarterback of the MIT football team. But I come from a sports-mad family. Two of my sisters – one an All-American – led their college team to a national field hockey championship and my brother works as a producer for ESPN. A third sister is first-rate fantasy baseball manager – and I think enough time has now elapsed for her to have recovered from the failure of the Yankees to qualify for the 2019 World Series and it’s again safe to call her. And one of my nieces was captain of Georgetown’s field hockey squad a couple of years ago.
I quail at the rah-rah endorsement of the capitalist system that the September video- and much of the coverage reproduced above embraces. And I also point out there is another way to make sure student athletes can finance their educations: how about free college? That policy would also benefit all students: not just those that can hit a home run or sink a basketball from half-court.
But with massive sums of money at stake, shouldn’t the athletes see some fair share of it?
As Sports Illustrated notes:
The NCAA has long denied college athletes the opportunity to gain from the commercial use of their identity rights. This is true in contracts related to intellectual property in video games as well as in camp sponsorships and merchandise and apparel dealings.
The NCAA has premised this ban on its system of “amateurism.” Amateurism captures the NCAA’s overarching desire to clearly distinguish college athletes from professional athletes and, in what some view as a peculiar from of protection, “protect” college athletes from a sports business world that the NCAA often paints as rife with unethical agents and deceptive businesses. Critics charge the NCAA has manipulated amateurism to create a repressive system where college sports are professional for almost everyone—the well-paid coaches, staff, trainers, alumni officers, broadcast companies, apparel makers, stadium and arena construction companies, clothing makers, sneaker conglomerates and numerous other persons and entities that profit handsomely from the playing and broadcasting of college sports. The group missing from that list? The players.
The NCAA’s announcement is a major change. But we should be clear on what it does and doesn’t do. Over to Sports Illustrated:
Conceptually, Tuesday’s announcement indicates that the NCAA is walking away from its longtime ban on players enjoying the fruits of their names, images and likenesses. When played out to its logical conclusion, the NCAA’s new position will enable college athletes to sign endorsement deals, negotiate to have avatars of their identities published in video games (so, yes, a return to college sports video games), contract to sponsor camps, be paid to sign autographs, and get a check to have their last names appear on replica jerseys.
But, such licensing deals don’t translate into colleges themselves actually paying them to play. Sports Illustrated again:
To be clear, college players profiting from the use of their names, images and likenesses does not mean colleges pay them. It instead means these players can negotiate deals with businesses—video game publishers, camps, trading card shows, clothing makers, sneaker companies and other entities that know those players’ identities are commercially valuable.
Now, perhaps, if after the NCAA, and various state and federal lawmakers, act in ways that would allow more endorsement money to flow to athletes, and less to university athletic department budgets, we might perhaps be able to reconsider the whole crazy “student athlete” system for high revenue sports (e.g., largely basketball and football).
Especially as there are many prominent alumni of universities other than MIT who not only grew up dreaming of playing on a signature sports team – but continue to live vicariously through their alma mater’s sporting glories.
In the meantime, Sports Illustrated includes a comprehensive roster of some of the legal issues that must now be addressed. Alas, In this brief post, I’ve not had space to consider these key issues in any detail; I encourage interested readers to look at that account for a more comprehensive treatment of pending issues (no paywall) – and some of the many ways the NCAA might act so that its latest announcement may not, after all, prove to be such a boon for student athletes.