The Billion Dollar Industry That Has Ne y That Has Never Paid Its Money-Makers: The NCAA’s Attempt at Compensation through Names, Images and Likeness. The National Collegiate Athletic Association (“NCAA”) has regulated collegiate sports for over one hundred years. The NCAA has long relied upon the principle of amateurism to prohibit college athletes from profiting from their name, image and likeness (“NILs”). However, recently this principle has drawn a lot of attention and has all but crumbled. States across the nation have passed legislation that will soon come into effect to bypass the NCAA bylaws and allow student athletes to profit from their NILs, even the United States Supreme Court has called the NCAA’s business model into question. This has left the NCAA with no choice but to pivot and allow athletes to profit from their NILs for the first time. This Note will explore the NCAA’s history of exploiting student-athletes for profit, and how their attitude towards the concept of NILs has changed overtime. This Note begins by looking at the NCAA’s business model and how they have turned themselves into a billion-dollar business that does not pay their money-makers, the athletes. Prior to addressing the various state legislations and federal proposals, this Note will also recount prior Supreme Court cases. Ultimately, this Note will propose standardized federal legislation to govern NIL laws.
The Sky Is Not Falling: Why Name, Image, and Likeness Legislation Does Not Violate Title IX and Could Narrow the Publicity Gap Between Men’s Sport and Women’s Sport Athletes. For decades, the National Collegiate Athletic Association’s (“NCAA”) amateurism rules have largely prevented NCAA athletes from commercializing their names, images, and likenesses (“NIL”). The right to license and profit from one’s own image, often referred to as the “Right of Publicity,” is explicitly recognized by statute or common law in 35 states. No federal Right of Publicity statute exists, but in 1977, the United States Supreme Court recognized the right. However, until 2021, NCAA athletes were precluded from benefiting from this right, as under the NCAA’s amateurism principle, “An individual loses amateur status and thus shall not be eligible for intercollegiate competition in a particular sport …” if he “[u]ses athletics skill (directly or indirectly) for pay in any form in that sport.” Until July 1, 2021, by becoming an NCAA athlete and complying with the NCAA’s Bylaws to maintain eligibility, NCAA athletes gave up their right to benefit from their NIL while competing in NCAA athletics. This relinquishment put full commercial marketing control of the athlete, their team, and the college sport in the NCAA’s hands. Research shows that despite the application of Title IX to sport in 1975, NCAA women’s sports have not been commercially marketed in parity with NCAA men’s sports, with NCAA men’s sports experiencing significant publicity and sponsorship windfalls. This article examines the recent decision by the NCAA to allow NCAA athletes to benefit from their NIL, the potential Title IX implications of the decision, and how the decision could narrow the publicity gap between NCAA men’s and women’s sport athletes in furtherance of the plain language and intent of Title IX.
AMATEUR HOUR IS OVER: TIME FOR COLLEGE ATHLETES TO CLOCK IN UNDER THE FLSA. The debate surrounding the National Collegiate Athletic
Association’s (NCAA) amateurism principles has waged for decades.
The governing body of college athletics insists that the athletes who
compete on a daily basis should not—or shall not—receive any
compensation in exchange for their services while NCAA executives
line their pockets with billions of dollars each year. This concept of
“no pay for play” has drawn national criticism since the NCAA
created the term “student-athlete” in the 1950s to combat a workers’
compensation claim. The amateurism principles were concocted as
an attempt to prevent college athletes from being classified as
employees of their universities; put more plainly, the NCAA
intentionally labeled college athletes as “amateurs” to deny the
athletes the compensation they are entitled to.
The Experiment Podcast: The NCAA Sold Fans a Multibillion-Dollar Story. It May Finally Be Coming Apart. Name, Image, and Likeness Rights as a Means to Student-Athlete Self-Authorship. This thesis will address the concerns regarding the regulation of student-athletes’ incomes,
endorsements, names, and likenesses, by the NCAA. The current debate over student-athlete
finances has been constrained into two unsustainable prevailing hypotheses. The first
dominant argument is that the current system is adequate as-is, and scholarships are a
privilege for athletes. The second leading belief is rooted in the professionalization and
salarying of college athletes. I believe that this debate has created a false binary dependent on
authoritarian structures, and there is a multitude of avenues toward a simplified, liberating,
and just system of college athletics. This thesis proposes an initiative of decolonization
through deregulation of student-athlete revenues and images. It draws from student
development theory in order to advocate for self-authorship by college athletes, offering a
self-authorship seminar to maximize student-athletes’ potential
Intercepting Licensing Rights: Why College Athletes Need a Federal Right of Publicity. The right of publicity is the right of an individual to control the
commercial use of her name, image, likeness, or other identifiable
aspects of her persona. In the United States, the right of publicity is a
state-law right, not federal, and recognition of the right varies
significantly from state to state. The lack of uniformity among states
poses significant problems for individuals who are recognizable
throughout the United States. Specifically, student athletes, who
would lose the ability to play college athletics if they were reimbursed
for the use of their images, are among the individuals most at risk of
inequitable treatment resulting from varied state laws. This inequality
recently manifested itself when two former college quarterbacks alleged
that Electronic Arts, Inc.’s depiction of football players in its NCAA
Football game used their likenesses without compensation. One
quarterback brought his case in California, the other in New Jersey.
Despite the similarity of the facts, however, the district courts reached
opposite conclusions. This Note examines those two cases and
recommends that Congress create a federal right of publicity to better
protect student athletes.