Right of Publicity

Stop Saying That The NCAA Will Now Allow College Athletes To Profit

October 29, 2019 will either be remembered as the day that the NCAA signified a major shift in its position on whether college athletes should receive compensation in exchange for the commercial use of their names, images and likenesses, or it won’t. The bottom-line is that it is far too early to tell what the NCAA intended by way of the dissemination of a release titled, “Board of Governors starts process to enhance name, image and likeness opportunities.” It appears that was intentional.

The NCAA’s headline itself is void of any specifics and the article should be read very carefully not only for the vague and overbroad language contained therein, but also for what it does not say. Even the sub-title says, “Each NCAA division directed to immediately consider modernization of bylaws and policies.” What do these statements mean? From the outside, after many years of following the NCAA, I fear the statements amount to a whole lot of nothing.

First of all, the Board of Governors should not just now be “starting a process” to “enhance” name, image and likeness opportunities. These opportunities, best characterized as rights of publicity, are oft codified by state statutes or are otherwise implied by common law, for all in the United States.

The NCAA has thus far taken a very backwards position on this issue, prohibiting college athletes from being able to commerciallly exploit these publicity rights without any cause whatsoever. This has thus caused numerous states, including California, which has passed a bill that was signed by its governor (going into effect in 2023) and my State of Florida (where I have worked tirelessly with Representative Chip LaMarca on a bill that would go into effect 2020) to take the lead in causing change, not waiting for the NCAA to provide the rights to college athletes that every other college student enjoys.

What does the NCAA mean that it has started a process? What exactly is that process and what will it result in? “Enhancing” opportunities?

The NCAA should have no role in the procurement nor negotiation of those opportunities. In fact, the assistance should come from licensed agents and attorneys who have the ability to help athletes with finding the right opportunities, on a case-by-case basis, and then assisting in the structure of the deals. The NCAA’s statement is void of any language highlighting if/how athletes will be able to be assisted by representatives, which is vital to protecting their interests.

More importantly, the numerous news headlines surrounding the NCAA’s release are factually inaccurate.

The NCAA has not indicated that there was a unanimous vote to permit college athletes to earn compensation from the use of their names, images and likenesses. Instead, the release states that the intention is to permit college athletes the opportunity to benefit, in a manner consistent with the collegiate model.

If you do not think the NCAA was extra cautious in the choice of its words, then you are willfully blind to the situation at hand.

The word “compensation” was used only once in the entire release, in the fifth bullet point concerning the principles and guidelines that the NCAA suggests in accordance with its proposal. That bullet point states, “Make clear that compensation for athletics performance or participation is impermissible.”

While California’s law was originally titled, “Fair Pay to Play Act,” it was never intended to mandate that colleges pay athletes directly in the form of a salary or otherwise. Any monies received by college athletes for the commercial exploitation of their names, images and likenesses, in the California and Florida proposals, would go directly from the third party to the athlete and the schools would not act as passthroughs whatsoever. Thus, the NCAA’s concern about compensation for performance or participation is somewhat irrelevant.

However, why it is also relevant is because (1) it is the only mention of compensation in the release; and (2) licensing deals may actually require participation, which makes sense. The first point is important, because it highlights that the NCAA is actually not considering compensation as a possible benefit for college athletes under its proposal that would open the door to third parties using names, images and likenesses. The second point is relevant, because third parties will want value from the deals they craft with college athletes. If an athlete is not going to play, then the value of the license will diminish. Thus, third parties may wish to build protections into the deals that require athlete participation. There is no issue with this, but the NCAA just made it clear that “compensation for athletics performance or participation is impermissible.”

There are many other issues with the release and language that signals this will not be a plan to allow college athletes to be compensated whatsoever.

In its first bullet point surrounding “principles and guidelines,” the NCAA originally says that college athletes should be treated similarly to non-athlete students. However, the sentence concludes with, “unless a compelling reason exists to differentiate.” It is almost as if the NCAA does not think you will read beyond eight words in a sentence. The carve-out makes it so that the entire sentence means nothing, since the NCAA will be able to come up with “compelling reasons” to differentiate between college athlete rights and non-athlete rights.

The second bullet point stresses the NCAA’s desire to “maintain the priorities of education and the collegiate experience to provide opportunities for student-athlete success.” This is an excellent example of a sentence that means absolutely nothing based on its overbreadth and vagueness. That said, if you read between the lines and focus on this sentence within the entirety of the release, a picture begins to be quite clearly painted, as brought to my attention by Ramoji Huma of the National College Players Association (NCPA), who also said on October 29 that, “This is not a green light to receive ‘compensation. The NCAA has been signaling for months that such benefits would not be actual compensation.”

Huma was referring to a document previously disseminated by the NCAA Board of Governors Federal and State Legislation Working Group that discussed federal and state efforts to introduce legislation allowing college athletes to earn compensation from the use of the names, images and likenesses, which “necessitate conversations and agreements about how the membership should respond to the legislative proposals.”

Therein, it was made clear that the NCAA’s goal is to “Assure that any proposed solutions keep in mind that student-athlete benefits must be tethered to educational expenses or incidental to participation.”

Now, the second bullet point in the October 29 release makes a bit more sense. If the NCAA is “maintaining the priorities of education” with in allowing college athletes to earn “benefits” (but not compensation), then we are not really talking about the NCAA allowing college athletes to profit from their names, images and likenesses, as so many news headlines would like you to believe. Instead, it is the NCAA trying to convince you that states should not be involved in this process, while it seeks to ultimately limit these “benefits” to those that may be “tethered to educational expenses or incidental to participation.” That statement itself is quite broad, but also clear that cash, as a consideration for use of publicity rights, is likely not on the table.

As I said immediately following the release from the NCAA on October 29, let’s hold our applause until we figure out what this actually means. In the meantime, states and the federal government should not stop fighting for college athletes to be able to actually profit off of their publicity rights. The pressure on the NCAA must grow even stronger if we truly desire college athletes to have the same rights as every other individual on their respective college campuses.