The National Collegiate Athletic Association (“NCAA”) is a multi-billion dollar enterprise. Universities, coaches, administration, and executives share in this success. However, only student-athletes—the very group whose talent and skills lay the foundation which built the NCAA’s empire—are prohibited from getting a piece of the pie.
According to the NCAA’s rules, student-athletes are prohibited from compensation for the use of their name, image, or likeness.[1] Doing so would violate their status as amateurs, a fundamental policy of the NCAA. If a student-athlete violates his or her amateur status by accepting compensation, he or she becomes ineligible to play collegiate sports. The NCAA’s key principle of amateurism has been given great deference by Courts.[2] That is until O’Bannon v. NCAA, where the Court said the principle of amateurism is not above the law and cannot restrict a student-athletes’ trade.[3] When the NCAA prohibits a student-athlete from profiting from their name, image, or likeness, they are violating the student’s right of publicity. The NCAA is infringing on student-athletes’ property right in the use of their name, image, and likeness.
A common thread among student-athletes is that they must choose between succeeding in athletics or succeeding in academics. Specifically, men’s football and basketball student-athletes are less likely to receive their diplomas than other groups of student-athletes.[4] However, compensating collegiate athletes for their name, image, and likeness can bridge the gap between the two. College athletes will be more motivated to earn better grades to achieve and maintain their endorsements. Similarly, if student-athletes are paid for their name, image, and likeness, they will be more likely to earn a degree instead of entering professional sports as quickly as possible to earn a paycheck.[5]
California was the first state to attempt to restore a student-athlete’s right to publicity by passing a law that allows compensation for their name, image, and likeness.[6] However, California will not be the last. Other state legislatures have introduced similar bills. Colorado, Florida, Illinois, Kentucky, Minnesota, Nevada, New York, Pennsylvania, and South Carolina have introduced or will introduce bills similar to California’s legislation.
However, a state by state approach is extremely problematic.[7] States that pass legislation allowing student-athletes to profit from their name, image, and likeness will have unfair competitive advantages.[8] These schools will have a clear recruiting advantage because high school players will have an incentive to sign with schools within states that enacted laws to compensate collegiate athletes for their name, image, and likeness.[9] The NCAA will likely argue that the lack of uniformity among states makes it impossible to implement uniform rules for all member schools.[10] That argument succeeded in National Collegiate Athletic Association v. Miller.[11]
The need for federal legislation is clear. It would be more efficient to enact a federal statute that would apply to all fifty states.[12] This would eliminate certain states gaining an unfair competitive advantage in recruiting because all states would be playing by the same rules.[13] The idea of federal legislation is not far-fetched. Representative Mark Walker introduced a bill in the United States House of Representatives titled “Student-Athletes Equity Act.”[14] Additionally, Congressman Anthony Gonzalez also plans to introduce federal legislation that would allow compensating collegiate athletes for their name, image, and likeness.[15]
*J.D. Candidate, 2020, Florida International University College of Law
[1] See NCAA, 2018-19 NCAA Division I Manual, art 12.1.2, at 63 (2019), http://www.ncaapublications.com/productdownloads/D119.pdf.[2] Nat’l Collegiate Athletic Ass’n v. Bd. of Regents, 468 U.S. 85, 102 (1984).
[3] O’Bannon v. NCAA, 7 F. Supp. 3d 955, 986 (2014) aff’d in part, rev’d in part 802 F.3d 1049 (9th Cir. 2015).
[4] Ramongi Huma & Ellen J. Staurowsky, The Price of Poverty in Big Time College Sport, Nat’l C. Players Ass’n 3, http://assets.usw.org/ncpa/The-Price-of-Poverty-in-Big-Time-College-Sport.pdf.
[5] Michael McCain, The Fair Pay to Play Act and Dignity in College Athletics, Sports Illustrated (Oct. 2, 2019), https://www.si.com/college/2019/10/02/ed-obannon-fair-pay-act-california [hereinafter Fair Pay Act].
[6] Id.
[7] Michael McCain, California’s New Law Worries the NCAA, but a Federal Law Is What They Should
Fear, Sports Illustrated (Oct. 4. 2019), https://www.si.com/college/2019/10/04/ncaa-fair-pay-to-play-act-name-likeness-image-laws.
[8] Id.
[9] Id.
[10] Id.
[11] Nat’l Collegiate Athletic Ass’n v. Miller, 10 F.3d 633 (9th Cir. 1993).
[12] Id.
[13] Id.
[14] H.R. 1804, 116th Cong. (2019-2020).
[15] Fair Pay Act, supra note 5.