By Demetris Constantinou, Contributor
College sports have been a part of American culture since the late 19th century, starting with the Yale-Harvard rowing competition. This event marked the beginning of a long-standing tradition in collegiate athletics. Nearly 170 years later, one key issue persists: college athletes couldn’t monetize their image rights, until recently. The NCAA has long opposed athletes using their name for commercial purposes, citing its non-profit status as justification for this stance. The NCAA argues that college sports promote amateurism and physical well-being, but this view has become increasingly outdated. Football and basketball have become highly profitable, contradicting the idea of ‘pure amateurism’ in college sports. To put things in perspective, “the total athletics revenue reported among all NCAA athletics departments in 2019 was $18.9 billion”[1]. Of that amount, nearly $1 billion was generated during the period of March Madness, one of the most popular sporting events in the United States every year. Statistics like the above, in combination with studies assessing the Fair Value of student-athletes to $1.5 Million per player[2] triggered the student athlete community to mobilize and seek what they thought was fair, their ability to use their brand and image to their benefit.
Early Legal Battles
The battle over the commercialization of college athletes’ image rights gained momentum around 2009-2010 with multiple lawsuits. In 2009, Edward O’Bannon, a former basketball star, sued the NCAA over the use of his image without compensation. O’Bannon, who had won the 1995 national championship, argued that it was unfair for the NCAA to profit from his image while he received nothing. Several other former athletes joined the lawsuit, making it one of the most high-profile cases in college sports. In 2010, Samuel Keller and Ryan Hart filed separate lawsuits against EA Inc. and the NCAA over their likenesses used in NCAA video games. Like O’Bannon, Keller and Hart argued that it was unjust for EA to profit from their names without compensating them.
The Rise of the Fair to Pay Law in California
While all of the cases above ended up being settled between the plaintiffs and the defendants, their clamour was far from over as many believe that they laid the groundwork to what became a reality in California’s 2019 “Fair Pay to Play” law. Simply put, the California law was described as “the beginning of the end of the second-class citizenship NCAA Sports imposes on college athletes”[3], paving the way for college athletes to monetarily benefit from their image and likeness. The law was clear, college athletes in California would be allowed to profit from their name, image and likeness, overruling decades of the NCAA’s attempt to treat college-athletes as amateurs that simply embrace physical well-being. The bill generated national attention with NBA stars such as Lebron James and Draymond Green acting as its ambassadors and pushing for its universal adoption.
The U.S. House of Representatives Bill: A Turning Point for College Athletes
The series of events outlined above, marked a decade of struggles for the college athlete community who through litigation and conversation. On September 24th, 2020 managed to achieve the introduction of a historic bill in the U.S. House of Representatives. The Bleacher Report described it as “a bipartisan bill that would give college athletes the right to make money of their name, image and likeness”.[4] This is essentially what college-athletes have always been fighting for, their ability to profit from the use their image rights. While this bill is far from finalized, it marks the beginning of a new era for student athletes. It’ll be interesting to see the extent to which student athletes will be able to profit from their image rights. Also to what the ramifications will be for all the involved stakeholders. Namely the NCAA, the student athlete community and the world of college sports in general. It’s expected that the NCAA will push back. Therefore this will be, trying to add constraints to this legislation. At the same time the student-athlete community will keep pushing forward, asking to be treated as employees, securing their benefits and ensuring stable salaries.
While the outcome of the above remains undetermined, we encourage anyone interested in college sports to keep a close eye as the years to come will prove crucial to what will eventually become the status quo in the college sports industry.
[1]Finances of Intercollegiate Athletics: http://www.ncaa.org/about/resources/research/finances-intercollegiate-athletics#:~:text=The%20total%20athletics%20revenue%20reported,in%202019%20was%20%2418.9%20billion
[2] An All-Encompassing Primer on Student-Athlete Name, Image and Likeness Rights: https://digitalcommons.liberty.edu/cgi/viewcontent.cgi?article=1175&context=lu_law_review
[3] California will allow college athletes to profit from endorsements under bill signed by Newsom: https://www.latimes.com/california/story/2019-09-30/college-athlete-endorsement-deals-ncaa-california-law
[4] College Athletes’ Image Rights Bill Introduced into the US House of Representatives: https://bleacherreport.com/articles/2910554-college-athletes-image-rights-bill-introduced-into-us-house-of-representatives