Potential Changes with NCAA Player NIL Rights

Should college athletes be able to receive compensation for the use of likeness? For years, there has been debate about around this question, and the way the NCAA governs student athletes. Recently however, this issue has attained a brighter spotlight. In 2019 the NCAA announced that it would pursue rules changes to allow for the compensation of student athletes for the use of their name, image, and likeness (B. C. and L. Radnofsky 2019). It is important to note that there have been no actual rules change yet, but the NCAA is simply “clearing the way” for potential future rule changes. This decision comes from a long seeded national debate over name, image and likeness rights (otherwise known as NIL rights) of student athletes, and was further provoked by California’s passage of a bill in September to allow student athletes to be compensated for the use of their name, image, and likeness (L. Radnofsky 2019). Before diving into the implications of these changes, it is important to understand a little more of the history of this issue.

The issue of student-athletes NIL rights was brought into the public eye in 2008, when Ed O’Bannon, a former Men’s Basketball player at UCLA sued the NCAA and the Collegiate Licensing Company (CLC) allowing for the usage of his likeness in a video game, sold by Electronic Arts (EA) (Boozer, n.d.). He alleged that the NCAA was violating antitrust laws by not allowing student athletes to be compensated for the use of their names, images, and likenesses—while the NCAA was profiting from the licensing to Electronic Arts. Ultimately, the case did not end with a decision that made it legal to compensate players for the use of their NILs but it did determine that some of the NCAA’s practices violated the Sherman Antitrust act. It also established that NCAA rules could be challenged in court (Boozer, n.d.)., helping to bring the issue to the attention of the press and the public, paving the way for the cases brought against the NCAA in recent years.

The NCAA’s current rules governing NIL rights of students are incredibly restrictive, and in a number of ways borderline discriminatory against student-athletes. Within the 2019-2020 NCAA Division I Manual, all of these restrictions of NIL rights of student-athletes are outlined. In the bylaws, article 12.5.1.1 says that the NCAA “may use the name or picture of an enrolled student-athlete to generally promote NCAA championships or other NCAA events, activities or programs.” This essentially gives the NCAA the right to use the likeness of student-athletes for their own purposes (and for their own profit), while at the same time article 12.5.1.2 states that no one else may profit from the use of the names, images, or likenesses of student-athletes—including the student themselves.

Along with these rules, the NCAA goes further in Article 12.4.4, where it says, “A student-athlete may establish his or her own business, provided the student-athlete’s name, photograph, appearance or athletics reputation are not used to promote the business.” On the surface level, this does not seem to be all that terrible, and some would argue that it makes sense, but a closer examination shows that this is incredibly restrictive for student-athletes. For example, if I, a non-athlete college student, came up with an idea that I believed was profitable, I could easily create and promote my company online and in person, marketing my company to reach more people. If I was however a student-athlete using my name, image or promoting my company in any way would be in direct violation of NCAA rules, causing me to lose eligibility. This doesn't just mean that I could no longer play my sport, but it means revoking any  athletic scholarship I am on, and possibly resending my admittance to my university. These rules make it very difficult for student-athletes to create a company, but not impossible.

A great example of this can be seen with Logan Harvey, a former Wake Forest student-athlete who started his own company, FanPark, while a student. In an article about his company in the Winston-Salem Journal, Harvey was quoted saying,

“They [the NCAA] keep a cap on what you’re able to do. So I had to sign a waiver, go through all that kind of stuff to actually be able to have this business, had to provide all this information that this was specifically my idea, this is why I have to be a part of it, this business doesn’t succeed without me…it felt almost as a deterrent to be an athlete trying to do this.”

FanPark is a great example of how the NCAA’s limitations of student athlete’s NIL rights disenfranchise student-athletes. Logan was not barred from starting his company while in school, but his name, image or likeness was not allowed to be tied to the company until after he graduated, making it  practically impossible for him to promote his own company. If Harvey had simply been a student instead of a student-athlete, he could have used his name, image, and likeness to promote his own business—but being an athlete limited his ability to be even publicly attached to his own company until after he graduated.

With the NCAA discussing changes to their NIL rights rules for the future, this could become much easier for student-athletes to utilize their NIL rights. While the media tends to view these changes through the lens of how it impacts big-ticket sports like Division I basketball and football, the effects and implications of a change of this kind would be much further reaching than just for these athletes. Student-athletes such as Logan Harvey would have a much easier time starting their own companies, and students across ALL NCAA sports could be compensated for the use of their name, image, or likeness. The issue is far from being resolved though, as it opens up several other questions.

One major question posed by these changes is how much value each student-athlete has, and how to compensate them. From the moment a student-athlete puts on their schools’ uniform and competes for them, whether they are a starting quarterback on a Division I football team, or a Division III shot-put thrower, every student-athlete adds value to their school and the NCAA who uses the students name, image, and likeness. This would create the question of who needs to compensate an athlete, how much each individual athlete can be compensated, and many others—all of which would need to be answered or addressed in some way. The NCAA would still want to regulate the compensation and usage of student-athlete’s NIL rights, which could pose another legal issue and lead to further litigation.

So far, the NCAA has left us with more questions than we began with, and no answers to our previous questions. Meanwhile, there have been no actual changes to the NCAA’s rules governing student-athletes NIL rights yet, we are simply left to speculate and ponder what exactly these rules will look like, and how the NCAA will go about trying to apply these changes. The NCAA argues that it is trying to protect the “amateurism” of college student-athletes, which is a legitimate claim—but at what point are their actions considered disenfranchising and borderline discriminatory towards student-athletes?

Even if these “proposed” revisions to the NCAA’s bylaws do go into effect, the story will not end there. As I mentioned above, there are so many other questions that this will open up in the future, with potential issues and abuses of the system by schools around every corner. While the initial issue may be resolved soon, I expect this to be an ongoing issue throughout the decade, which will provide us a bird’s-eye view of the effects of such a potentially pivotal change to college athletics. With the long-term effects of these proposed changes impossible to know, we sit at a crossroads without knowledge of how it will end, leaving us to speculate as to how the NCAA will evolve in the years to come.

Works Cited

Boozer, Chandel. n.d. “Amateurism and the Right of Publicity: How O’Bannon v. NCAA Strikes an Imbalance Between Amateurism and Student-Athletes’ Right of Publicity Regarding Use Of Their Name, Image, and Likeness.”

“Former Wake Baseball Player Set out to Solve Parking Issues on Campus. Instead, He Found a Business with FanPark | Wfu | Journalnow.Com.” n.d. Accessed January 17, 2020. McFall, Todd. 2019. NCAA rules and NIL rules. Interview In person. NCAA. n.d. “NCAA Divison I Manual.” NCAA. Accessed December 23, 2019.

Radnofsky, Brian Costa and Louise. 2019. “NCAA Clears Way for Athletes to Earn Endorsement Money.” Wall Street Journal, October 29, 2019, sec. Life. 

Radnofsky, Louise. 2019. “California Governor Signs Bill Allowing College Athletes to Ear