Endorsement Deals Intellectual Property NCAA Violations

Reading Between the Lines of the Pac-12’s Concepts for Proposal

Roughly two months after United States District Judge Claudia Wilken approved a $60 million settlement that would compensate past collegiate players for the NCAA’s use of their name, image, and likeness in video games manufactured by Electronic Arts (EA Sports) from the years 2003 to 2014 – a decision currently being appealed by the NCAA – it appears that the Pac-12 has outlined concepts that would help avoid future liability by the NCAA. This past Friday, the Pac-12 – along with the ACC, Big 12, Big Ten, and SEC – submitted an outline of ideas to be proposed and voted on at the 2016 Autonomy Session scheduled for January 15 in San Antonio, Texas at the NCAA Convention. While most centered on giving student-athletes more flexibility to conduct their lives off the field, one proposal sure to be tossed around amongst the other members of the Power 5 conferences focuses on allowing student-athletes the ability “to use their names, images, and likenesses to promote their own non-athletic business ventures.”

Based upon the wording of the anticipated proposal, it would appear that such ability does not encompass allowing student-athletes the right to profit off their name, image, or likeness based on their individual athletic endeavors. Thus, it appears unlikely that we will be seeing stud collegiate athletes such as Ezekiel Elliot or Dalvin Cook appearing in the next “This is SportsCenter” commercial promoting their on field talents. However, a question remains whether they would be allowed to toss the pigskin around with Brett Favre or Drew Brees in the next iteration of “Wranglers” television commercials.

This murky ground is due to the fact that most athletes – whether collegiate or professional – achieve most, if not all, of their endorsement deals through their athletic feats, which are usually highlighted or included in whatever endorsement or sponsorship contemplated by the parties. For example, New York Giants breakout star wide receiver, Odell Beckham Jr., was able to score a number of endorsement deals over the off-season due to the amazing one-handed touchdown reception he grabbed in the Giants Sunday Night Football game against the Dallas Cowboys. As such, it was his athletic ventures that spurred the profitability of his name, image, and likeness.

Notwithstanding the above, the proposal should allow student-athletes who have their own start-up business to attach their name, image, and likeness to it for promotional purposes, or partner with another company for similar reasons. But – coming back to the underlying reason that led to the concept’s proposal – what about allowing the student-athlete to use and license his likeness for inclusion in future renditions of EA Sports now-defunct video game series, NCAA Football? Would such be considered promoting one’s own athletic ventures based upon the fact the license would allow the video game manufacturer to use the student-athlete’s name, image, and likeness in conjunction with playing football? Or does the concept simply prohibit collegiate athletes from profiting in business ventures solely based on their status as a student-athlete?

As currently written, the concept appears over inclusive and lacks concrete assurances as to what student-athletes may or may not do with regard to the licensing of their name, image, and likeness. Fortunately, the concepts being proposed by the Pac-12 and other major conferences – of which there are 72 in total – are presently being reviewed by the NCAA Division I Council and several of its standing committees. After such review, and based upon the suggestions made, the Pac-12 and other conferences may amend its concepts before finalizing them as proposals on November 15. At that time, we should have a better understanding of what the concept intends or was designed to prohibit, and how student-athletes may move forward into the future.