NCAA set to grant student athletes ability to profit off of likeness

Timothy Belin, Campus Carrier sports editor

The question of student athletes making money has been a hot topic in college sports for many years. Now, with the NCAA board of governors set to submit new proposals for image rights and likeness regulations by the end of October, a resolution could finally be coming.

The conversation surrounding image rights was kick-started in recent years by O’Bannon v. NCAA, according to Mark Howard, visiting assistant professor of kinesiology who specializes in sports administration. Howard said the case involved several former NCAA athletes, including former basketball player Ed O’Bannon, suing the NCAA for continuing to profit off of their likenesses after they had graduated from college.

“Technically, when you sign that letter of intent you sign away your likeness, so the schools and the NCAA were still making money off of it,” Howard said. “So he sued, and a couple other people sued, and they kind of just combined everything into one lawsuit that went all the way up to the Supreme Court. And, basically, one of the federal judges was like ‘yeah, students should be able to make money off their likeness.’”

One of the results of the case was the cancelation of EA Sports’ NCAA football and NCAA basketball video games, as their right to use the likeness of amateur athletes became controversial. For junior cornerback Jordan Wilson, that was when he first became aware of the situation.

“They stopped making the video game and I was a big fan of the video game and I just had to learn and figure out why the video game wasn’t being made anymore,” Wilson said. “And it was because of licensing and image rights for athletes.” 

Howard said that ever since that ruling, there has been a renewed effort to get the NCAA to change its laws. When they failed to do so, individual states, namely California, Colorado and Florida, took the initiative.

“People were trying to push the NCAA to come up with something, but since they never did, that’s when the state legislatures stepped in,” Howard said. “There is an issue with that, because each bill on the state level is different, so what students are able to do in Florida might be different from Colorado or California, so it would actually be better if it was done by the NCAA or on the federal level, that way it would be consistent across the board for everybody.”

With Florida’s new law coming into effect in July 2021, the NCAA has a clear deadline by which they need a resolution. If they fail to make changes by then, Florida colleges could gain a recruiting advantage on their opponents, according to Howard, as they will be the only ones to offer possible remuneration.

The latest proposal, according to director of athletics Angel Mason, is to give players the rights to their likeness as long as they are not using them in affiliation to their college or conference.

“The most recent is, as a student athlete, if you are doing things with your image and your likeness and it’s not directly affiliated with the institution, the promotion of the institution’s brand, they can be compensated in that way,” Mason said. “The difference for us right now is if a student athlete wanted to be in their uniform and go pose for the local car dealership, that’s not something they could be directly paid for. That’s the type of things professionals do, and this is amateur sport, so therefore there shouldn’t be compensation for that.”

According to Howard, this could play out in a variety of ways.

“They can do endorsement deals but without the school or conference involvement, and they can receive compensation through social media, new business or personal appearances that also don’t have the institution involved or the use of the trademark,” Howard said. “Basically, they would have to appear in probably the colors of the school, or as a football player or basketball player, but without the logo in it.”

And while these new laws would mostly impact DI athletes, Howard said that he did expect a few Berry students to take advantage of them as well.

“I think there are some students, even at the DIII level, that could use their likeness to make money,” Howard said. “They’re just going to have to be a little bit more creative in that than, if you’re at a DIII, than University of Georgia, Georgia Tech even, where they get a lot more attention on ESPN and national media.”

One such player could be Wilson, who said that he and his teammates are excited at the idea of finally being able to make money as college athletes.

“It would be nice if we did start making money off of it, like local ads and things like that that would involve making money and things of the sort,” Wilson said. “Or social media apps, like using our platform as football players, we can make money off of it, so that would be dope for us.”

Wilson said the he is particularly interested in using his TikTok account, which he has already been growing, to earn revenue.

“It would be a fun thing to do, while also knowing that I could be paid for it,” Wilson said. “We already do it right now for free, so just being able to make compensation off of it would make everything a lot better for us athletes.”

Mason, however, said she did not expect many players to actually be able to take advantage of the law changes.

“If somebody wants to compensate you externally for your name or your image and it’s not connected to your amateur rights, I really am just okay,” Mason said. “I think it’ll be a lot fewer individuals than we assume, because you would have to compensate those students at a going rate, and at a going rate you might want to access an actual professional.”

Howard agreed, saying the only chance for real remuneration across the board is if the changes see a return of EA Sports’ NCAA video game franchise.

“I think it will impact maybe 5% of the players,” Howard said. “I think the majority of athletes won’t see a lot of money from it, unless, once the deal goes through, if the NCAA is able to work a deal with some of the video game people again to allow for the NCAA football to come back or NCAA basketball to come back. Those schools that are represented in the game would get a certain amount of money that would be passed along to each of the players. But I don’t think it’s as much money as everybody’s making it out to be.”

The real money would only be made if the changes prompted further revisions to current NCAA laws and allowed for players to earn salaries, something the NCAA is keen to avoid, according to Howard.

“The NCAA obviously doesn’t want the players to be paid at all, and for them they want as much control over it as they can get, because it could snowball into a pay for play situation if you don’t put certain regulations on it,” Howard said. “The pay for play has kind of always been the main topic and I think people get confused on the idea of being able to make money from your likeness and pay for play. For me, it’s two separate ideas. The pay for play would be schools paying athletes a certain amount of money to come to a school to play. That’s different from being able to use your likeness to do social media or create a new business or do signings or something like that to make money where the school is not involved. People kind of wrap that all into one big topic, but I think it’s two different things.”

Howard said regulating the matter could prove complicated because boosters could start arranging endorsement for prospective recruits, essentially indirectly paying them salaries.

“If you’re trying to keep the idea that college athletics are at an amateur level, which is kind of a fallacy but they are the amateur model, how are you going to control it to where the boosters aren’t involved and there’s not any nefarious thing going on to trap the student athletes to come?” Howard said. “That would be the hard part, the con side of it, but I think opening it up to let student athletes make some money, or attempt to make some money on their likeness, I think it’s been a long time coming and they should probably be able to do that.”

For Wilson, pay for play is closely related to the current discussion surrounding image rights, as he said he believes the latter is only the first step towards the former.

“This is only the first step,” Wilson said. “It’s only the beginning, because right now we don’t know everything that goes into it, but I think this is the first step for college athletes to truly get paid.”

What is for sure, according to Howard, is that, with over thirty states now introducing or discussing legislation, the NCAA is going to have to get its priorities in order if it wants to remain the governing body of collegiate athletics.

“If all of them do something and the NCAA is still kind of twiddling their thumbs, then it’s going to be a problem for the NCAA,” Howard said. “The NCAA needs the schools way more than the schools need the NCAA, so it could be a potential breaking point.”

Most of these complications, however, would most likely only involve DI schools, and Mason said the concern at the DIII level is more about keeping players concentrated on their sports, something she is not worried about for Berry.

“I’m not concerned about it being a distraction,” Mason said. “The one thing that I can say, I believe that our students in general are able to juggle quite a few things very well, and some of them, if they make those decisions to take part in those things, they’ll be responsible enough to have it be in a way where they can do everything they want to. And in all honesty, I think part of that would be as well, if they don’t continue being able to maintain their status as a student athlete, they may not be the individuals that folks actually want to have serving these capacities, so it’s a double-edged sword. But our students manage their time very well, and so I’m not really concerned about that.”

Mason is probably right not to worry, as Wilson said that though he is following the developments, he knows that any new laws would mostly impact athletes from higher divisions. He said that the real excitement for him and his teammates actually lies in the return of the NCAA football video game.

“For the lower levels, we don’t talk about it as much, making money, as the DI guys would,” Wilson said. “But for us it’s a big deal so we can get the video game back.”

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