In the midst of NBA free agency chaos and the Women’s World Cup, a major story in the world of college sports has seemingly slipped through the cracks. Despite its lack of media coverage, the battle between California and the NCAA could have several ramifications impacting the future of college athletics.
The issue involves California legislation and, if passed, the NCAA says that California might be banned from participating in NCAA championship events.
Let’s start with the basics. What does California want to do? And, why is the NCAA so upset?
Recently, California has proposed a bill (which has passed the state Senate) that would allow college athletes within the state to receive compensation for their name, image, and likeness.
Known as the rights of publicity, a person’s name, image, and likeness provide a legal umbrella that protects an individual’s personal right to choose how and if their identity is used for commercial purposes. These rights may even continue past death. As a result, any individual is entitled to compensation or legal recourse if someone uses that individual’s name, image, or likeness (a likeness includes artistic renderings, logos, gestures, distinctive appearances/silhouettes, and mannerisms) without permission. These rights are expansive and include: appearances in videogames, portraits, autographs, and even voice recordings.
The name, image, and likeness field has emerged as significantly more important in recent years due to the rapid explosion of athlete advertisements and social media. As a result, there have been several recent cases in the sports world involving these rights. Former UCLA basketball player Ed O’Bannon filed a lawsuit regarding the depiction of college athletes in videogames. Similarly, Michael Jordan won $8.9 million after suing a grocery store chain for using the number 23 and a similar image to his Jumpman logo in an advertisement without his permission.
However, student-athletes cannot cash in on these rights without losing eligibility.
NCAA Bylaw 188.8.131.52:
After becoming a student-athlete, an individual shall not be eligible for participation in intercollegiate athletics if the individual:
(a) Accepts any renumeration for or permits the use of his or her name or picture to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind; or
(b) Receives renumeration for endorsing a commercial product or service through the individual’s use of such product or service.
Not only are student-athletes not permitted to capitalize off of their own publicity rights, but they are often required by the university or conference to sign over these rights to the school they are joining to be used for TV and game day promotions. Today, some universities are beginning to make this waiver optional but its presence is still very common throughout college sports.
So, why is California opposing NCAA bylaws and attempting to give student-athletes these rights?
The answer is simple: it’s a way to compensate players. Many feel college athletes should be compensated because of the immense profits they bring in for the universities. However, many also feel that the university itself should not pay its athletes because it causes Title IX issues and potentially could create a wide gap between wealthier schools and smaller schools with lesser endowments. The name, image, and likeness exception is a perfect middle ground that satisfies both sides of the argument.
Under this California proposal, players would be able to receive compensation from third-party companies for advertisements, appearances, etc. Yet, the schools would not be providing the payments, so they will be able to maintain current funding to all athletic programs, even nonrevenue programs, without change.
Some argue that only the top few players would have advertisements which could cause other members of the team to become jealous.
While it is true that only the elite players would appear in Nike and Gatorade commercials, allowing this compensation would allow other players to receive compensation for local advertisements. The star quarterback might have a Powerade endorsement but the backup nose tackle might do advertisements for a local car dealership or nearby restaurant. Thus, opening the door to name, image, and likeness compensation actually could benefit a wide range of athletes. At least, in theory.
As we know, simply being a part of a major program puts a great number of eyes on an individual and that alone can lead to name, image, and likeness compensation. For example, IU’s Vijay Blackmon has only appeared in 7 games, averaging 1.9 minutes per appearance. Yet, despite his limited playing time, he has amassed over 9,280 Instagram followers. If compensation for name, image, and likeness was allowed even a player like Blackmon likely could find an endorsement because of the exposure he could provide.
This is California’s essential argument. The NCAA, on the other hand, disagrees.
Why is the NCAA opposed to name, image, and likeness compensation at this time?
Despite the fact that the bill would not go into effect until 2023, the NCAA is asking California to postpone its passage until the NCAA has had more time to review the matter. In May, the NCAA formed a “working group” of university administrators to review name, image, and likeness policies and proposed legislation, like California’s, on the issue. This panel is supposed to provide an update to the NCAA in August and make a final recommendation in October. However, California’s legislative session ends in September. Thus, the NCAA is essentially asking California to push back the bill to the next legislative session.
NCAA President Mark Emmert wrote in a letter to California committee chairs, “We recognize all of the efforts that have been undertaken to develop this bill in the context of complex issues related to the current collegiate model that have been the subject of litigation and much national debate. Nonetheless, when contrasted with current NCAA rules, as drafted the bill threatens to alter materially the principles of intercollegiate athletics and create local differences that would make it impossible to host fair national championships. As a result, it likely would have a negative impact on the exact student-athletes it intends to assist.”
Emmert further stated, “passage of the bill now will create confusion among prospective and current student-athletes and our membership. The impact of a prematurely passed bill would be difficult to untangle.”
California legislator Bill Dodd countered by saying, “What we’re doing is setting a marker… Having this date set forward in 2023 allows the NCAA to do the job that they should be doing not just for California, but for all other 49 states in our great union.”
California has long been on the forefront of protecting student-athletes. In 2012, California legislature passed the “Student Athlete Bill of Rights.” Under this bill, it requires a school to provide a scholarship to a student-athlete whose career is ended by injury, thereby allowing them to complete their degree. Similarly, if an athlete suffers an injury while playing for the school and the injury requires ongoing treatment, the university must continue to provide treatment for two years after that player’s graduation or departure from the team. At the time of this Bill of Rights passage in California, several other states (including Oklahoma, Iowa, and Indiana) tried but failed to pass similar legislation. California’s legislation inspired a few universities, first of which was IU, to create their own Student Athlete Bill of Rights.
For California, challenging the NCAA is nothing new.
The NCAA’s drastic proclamation that California schools could be banned from postseason championships if this legislation is passed shows just how fearful the NCAA is of these potential changes. The NCAA has been steadfast in its view of amateurism and refuses to budge in any way. If California’s legislation regarding name, image, and likeness compensation is passed, it will upset the power balance of college athletics by showing that NCAA policy could be overruled by state legislation. The NCAA views this as a threat to its autonomy and fears this legislation could be a slippery slope to other athlete payments.
Therefore, the outcome of this dispute between California and the NCAA could fundamentally change college athletics as we know it today. Will athletes be able to make money off of their name and image? Or, will the NCAA maintain its stranglehold on college sports?
No matter the outcome, the result of this battle could have a lasting impact on the next 10 years of college sports.
(Featured Photo: EASports)