On October 29, 2019, the NCAA announced that it intends to allow collegiate athletes to profit off their own likenesses, opening the door for popular athletes to receive compensation from merchandising and sponsorship opportunities. ((Colin Dwyer, NCAA Plans To Allow College Athletes To Get Paid For Use Of Their Names, Images, NPR (Oct. 29, 2019, 2:59 PM), https://www.npr.org/2019/10/29/774439078/ncaa-starts-process-to-allow-compensation-for-college-athletes.)). Michael Drake, NCAA board chair and president of Ohio State University, stressed the need for the NCAA to adapt to the future to continue to provide the best possible experience for college athletes. ((Ganesh Setty & Jabari Young, The NCAA will allow athletes to profit from their name, image and likeness in a major shift for the organization, CNBC (Oct. 29, 2019, 1:50 PM), https://www.cnbc.com/2019/10/29/ncaa-allows-athletes-to-be-compensated-for-names-images.html.)) This change is a welcome one, as it permits athletes to exercise their “right of publicity,” a right which courts have held as an “inherent right to control the commercial use of one’s identity” within the broader right to privacy. ((Anastasios Kaburakis et al., NCAA Student-Athletes’ Rights of Publicity, EA Sports, and the Video Game Industry, 27 Ent. & Sports Law 1, 21 (2009). )) However, unless it wishes to dispose of the student/professional athlete distinction entirely and permit schools to simply pay athletes as employees, the NCAA must be careful to circumscribe the rules surrounding student compensation.
First, the NCAA must distribute the profit generated by its existing merchandise and sponsorship deals to the student athletes whose likenesses are being used. The NCAA is the biggest player in the $4 billion market for licensed memorabilia of college athletes. ((Leslie E. Wong, Our Blood, Our Sweat, Their Profit: Ed O’Bannon Takes on the NCAA for Infringing on the Former Student-Athlete’s Right of Publicity, 42 Tex. Tech L. Rev. 1069, 1070 (2010).)) Yet, under the current regulatory system, student-athletes see very little, if any, of that profit. ((Id. at 1070.)) Under a profit-sharing agreement, players could license out their likeness for use in the NCAA’s media and merchandising opportunities for a set royalty and receive compensation for the sales that they themselves are generating for the NCAA. ((See generally Cristian J. Santesteban & Keith B. Leffler, Assessing the Efficiency Justifications for the NCAA Player Compensation Restrictions, The Antitrust Bulletin 91 (Feb. 15, 2017), https://journals.sagepub.com/doi/full/10.1177/0003603X16688838 (discussing various methods of paying collegiate athletes). ))
Second, the NCAA should carefully limit the types of compensation that student athletes can receive that is connected with funding from a university or college. If athletes are permitted to use their likeness for compensation, but the NCAA doesn’t wish to do away with the student/professional athlete distinction, universities should not be permitted to abuse new rules to overtly bribe athletes to join their school. For example, if student X can legally sell game-worn jerseys, University Y should not be permitted to buy a jersey for $1 million, contingent on student X coming to play football for them. Without such careful circumscription, “positional” advantages can occur among wealthy universities, leading to an “arms race” of sorts where the well-funded universities field the best teams and talent is aggregated within a few schools. ((Id. at 93.)) If the NCAA is not prepared to set nuanced rules around discrete compensation, a similar outcome could be achieved through salary capping or players unions. ((Id. at 110.))
Critics of this about-face from the NCAA point to the tuition that student athletes receive as an adequate form of compensation. ((See Cody J. McDavis, Paying Students to Play Would Ruin College Sports, N.Y. Times (Feb. 25, 2019), https://www.nytimes.com/2019/02/25/opinion/pay-college-athletes.html.)). The worth of an education is undoubtedly high, but it is not equivalent to the revenue that collegiate athletes generate. For example, costs of attending the University of Michigan are about $100,000 to $150,000 over the course of four years. ((Cost of Attendance, Mich. Fin. Aid Office (last visited Nov. 1, 2019), https://finaid.umich.edu/cost-of-attendance/.)). A March 2013 study conducted by the National College Players Association and the Drexel University Sport Management Department found that the average men’s basketball player performs at a value of roughly $1.06 million over four years. ((Brian Montopoli, Study: College athletes denied $6.2 billion over four years, CBS News (Mar. 20, 2013, 1:05 PM), https://www.cbsnews.com/news/study-college-athletes-denied-62-billion-over-four-years/.)). That is not to say that dropping $1 million into the lap of an 18-year-old is either moral, equitable, or realistic. Setting up a trust fund from which athletes can withdraw money for tuition, rent, food, drugs, and other school expenses seems realistic, and is one of the options evaluated in O’Bannon v. NCAA. ((O’Bannon v. Natl. Collegiate Athletic Assn., 7 F. Supp. 3d 955, 982 (N.D. Cal. 2014), aff’d in part, vacated in part, 802 F.3d 1049 (9th Cir. 2015). ))
The NCAA has finally come to terms with this disparity in the value that athletes generate, and the value they receive. By agreeing to modify its rules on compensation, the NCAA is taking the first step toward rectifying this disparity. However, the rules it sets now will determine whether athletes are fairly paid for their likeness and marketability, or if a select few schools will reign supreme over college sports by underhandedly paying athletes as professionals from their own coffers.