THE BATTLE FOR THE NAME, IMAGE AND LIKENESS OF COLLEGE ATHLETES

You're sitting at home and someone at your house is playing a video game, then you take a quick glance and notice you are in the game. You did not consent, nor receive any payment, you're just looking aimlessly at yourself on the screen.

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Ed O’Bannon, a former basketball player at UCLA was the first person to challenge the NCAA on their rules on amateurism. As a player he led the UCLA Bruins to a 1995 NCAA championship. After being drafted and playing in the NBA, his career was cut short and he became a car salesman. 

 

While working as a car salesman, O’Bannon noticed himself in the now former NCAA Basketball video game franchise, yet he did not consent nor give permission for anyone to do so. What would you do if you saw this?

 

After careful delegation, he decided to team up with other players including names like Bill Russell and Oscar Robertson who are both Hall of Fame NBA Players. O’Bannon went after the NCAA for compensation due to his likeness being used which started the process to where we are today. 

 

This lawsuit would eventually become a huge factor in the eventual legalization of the NIL deal.  In the case O’Bannon v NCAA, he filed an antitrust lawsuit against the NCAA in 2009. The lawsuit entailed that the NCAA violates antitrust rights in terms of being able to use likeness while legally being able to use it without payment. 

 

Although in 2014 the verdict did not go O’Bannon’s way, Judge Claudia Wilken of the Federal District Courts who presided over the case had voiced her displeasure with the NCAA to the New York Times.  Saying that the N.C.A.A.’s compensation rules were an unlawful restraint of trade. This was the first time that the NCAA was condemned as being in the wrong for their terms of amateurism and their compensation. Before this no one ever had challenged the NCAA to this level, this opened the doors for what has come to be known now as NIL deals.  

 

To say that this was a step in the right direction is an understatement. The NCAA had not seen this before, as a reputable person criticized the fact that they do not pay their athletes. 

 

The NCAA relentlessly has fought to not have to compensate collegiate athletes due to amateurism, as they are still in school. 

 

After the case the NCAA responded to Judge Wilkens with a statement saying, “We disagree with the Court's decision that NCAA rules violate antitrust laws,” said Donald Remy, the NCAA’s chief legal officer.” 

 

The NCAA was thrown in a whirlwind with this because of the fact it had never happened. Through previous laws we can deduce that the NCAA even though not giving players any compensation, somehow felt that this was legal and right. 

 

Although the NCAA had battled to keep collegiate athletes from receiving compensation due to being in school, The NCAA had another lawsuit on their hands, now with two University of North Carolina football players, suing the NCAA due to being deprived of meaningful education due to practices. 

 

The lawsuit revolved around the players feeling that the NCAA was responsible for ensuring a quality education for their players. They provided numerous studies to the judges which showed that the life of a student-athlete is comparable to full-time employment. In this lawsuit, they referenced a survey that came out in 2006 which states that student-athletes spend about 45 hours a week on athletics. And a more recent study done in 2011 surveyed student-athletes and found that they were working on athletics at minimum of 30 hours a week. 

 

According to former Justice Department Kenneth Wainstein who watched over the case. He had stated for CBS Sports that that lawsuit centered around “paper classes”- which were classes that never met but required only a final paper. The classes were with the African and Afro-American Studies department, which were used by UNC academic and athletic departments to help them keep their GPA eligibility. This is according to former Justice Department Wainstein’s report.

 

Although the UNC football players presented their case, the ruling stated that the NCAA could not be found responsible for athletes taking fraudulent classes. 

For the players, they have a right to want a better education for themselves while still being able to play for the NCAA. Coaches however are incentivized to demand more from the players, it is a conflict of interest due to both having to require different agendas, this case opened many eyes. 

 

College athletes spend a lot of time on their craft, often more than a full-time job. The NCAA took a lot of heat for this ruling because people started to realize that the rules were not so much about amateurism as it was about compensating athletes.

 

According to UnitedSportsUSA the job of a college athlete is extremely comparable to a work week of an employee.  “There is a lot of controversy in the NCAA now about whether student-athletes are really students or employees. Part of the controversy has to do with a poll which found that student-athletes really spend much more than the allowed 20 hours on sports.”

 

With legality being in question, The NCAA faced another lawsuit that happened in Tempe. Multiple former NCAA players joined a lawsuit against the NCAA as they did not receive rightful compensation according to AZCentral.com.

 

“Attorneys for Arizona State swimmer Grant House, Oregon basketball player Sedona Prince and former Illinois football player Tymir Oliver petitioned for class certification. They aim to represent many thousands of current and former college athletes who have been denied—unlawfully.” 

 

These players are going after the NCAA in a class action lawsuit that is going after their Antitrust laws. As you can see, players have been dealing with the lack of a support system through the NIL deals. 

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The student-athletes have realized that they themselves provide the universities with money and therefore they should be compensated. As the pandemic was in full force during 2019-2020. Student-athletes would make their voices heard, getting this issue all the way up to the NCAA Board of Governors. 

 

The NCAA Board of Governors is the highest governing body in the NCAA. Bringing together presidents and chancellors from each division, former student-athletes, along with select leaders from inside and outside the NCAA membership, the board is responsible for leading the NCAA and presiding over issues that affect the entire NCAA membership According to NCAA.org.

 

Going to 2019. In the last few days of October, California Gov. Gavin Newsom signed senate bill 206 which allowed athletes to receive via the ‘fair pay to play act’.

This bill is what restored the right for athletes to be able to be paid for their name, image and likeness in California. Governor Newsom of California signed the bill which was sent up to the courts to be eligible in 2023. These athletes who are now allowed to be paid would also be allowed to hire agents in order to navigate these deals and business ventures. 

 

“Collegiate student-athletes put everything on the line, their physical health, future career prospects and years of their lives to compete,” said Gov. Newsom on “The Shop.” “Colleges reap billions from these student-athletes’ sacrifices and success but, in the same breath, block them from earning a single dollar. As reported by CNN. 

 

While this was happening, the NCAA brought together a working group to analyze what their findings were and how they could implement a system like NIL deals which were reported to the NCAA Board of Governors. The NCAA released documents that show the working group showing the perspective of student-athletes. It was then voted that NCAA athletes would be allowed to benefit from their NIL in a manner consistent with other NCAA rules. Previously only California had made this legal, this was the first countrywide step against the former rules that the NCAA had imposed. 

 

Thus, the NCAA released a statement after California had allowed athletes the opportunity to be compensated.“Such compensation could be a substitute form of currency to pay for athletic performance, which is inconsistent with the principles developed by the working group. Without mitigation, these activities would be inconsistent with the collegiate model.” 

 

The biggest issue that the NCAA saw with NIL deals is that student-athletes would be compensated not based on their name, image and likeness but off of their athletic performance. The NCAA did not want colleges to gain competitive advantages by using compensation to lure them. 

 

Fast forward to 2020, and the NCAA was still dealing with this through the courts. In 2020 representatives of states made federal proposals to allow NIL deals to happen. Although many of these had slightly different effects. Some submitted proposals that allowed for restrictions to be placed, but some also submitted proposals that would allow the NIL market to be a wild west. 

 

 

 

 

 

 

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In March of 2021 there was another case related to NIL deals that would make its way to the Supreme Court. Alston v NCAA was the case and this one seriously challenged the NCAA’s authority over athletes being paid. 

 

This case was about the Anti-Trust Laws that restricted the compensation of student-athletes. Alston would win the trial in a unanimous 9-0 vote. The NCAA was also denied their argument as well. The NCAA used the 1984 v Board of Regents case in order to defend themselves but the court ruled that there was no evidence that compensating athletes would lower the consumer market. 

 

Just to put into perspective just how much the NCAA has benefited from these claims of amateurism. Looking through the NCAA financials, in 2020-2021 the NCAA made over 1 billion dollars in revenue off of collegiate athletes.

 

Although profiting directly from these student-athletes, the NCAA continuously fought for their refusal of compensation under the excuse of amateurism. Using these excuses, thousands upon thousands of student-athletes have unfairly had to have the same result as the Alston case. Although Alston did not get the result that he was looking for, the process behind the lawsuit garnered unwanted attention to the NCAA. Going after Anti-Trust laws forced the NCAA to have to defend themselves against something that they knew over time would not last for long. 

 

Just to let you understand how unprecedented this is, it has been over 37 years since the NCAA has had a case reach the Supreme Court. The Supreme Court heard the case and ripped through the NCAA. This case is what truly challenged the idea of amateurism. 

 

After this case, the majority of the public began to realize that it was all a front for the NCAA not to compensate their athletes. The lasting impact of this case, brought forth the players who fought the battle to have the right to be compensated for. This laid out the groundwork for the future challenge to be. 

 

Presiding over the case, Judge Kavanaugh published to ESPN that he was completely against the NCAA and their rules on amateurism. “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate,” said Kavanaugh. “And under ordinary principles of antitrust law, it is not evident why college sports should be any different.” 

 

The Court cleared up a lot of question marks that surrounded the legal aspects. The biggest point from this case was that Kavanaugh made it clear that professional athletes and collegiate athletes should be under differing rules. This resulted in collegiate athletes having a doorway to challenge the NCAA regarding rules upon their amateurism. 

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Walking onto campus as 18 year old kids, division one athletes are asked to perfectly balance school, athletics, life and now business ventures. Yet there were numerous coaches who were against the NIL and still are. 

 

Remember, these same coaches are the ones who made over millions of dollars leading these football teams while their players formerly didn’t receive a dime. 

 

When looking at coaches in the NCAA it is extremely important to realize the money that they make. According to Best Universities the average salary of head coaches in Power-5 conferences is at least $2.7 million. With coaches making upwards of multi millions at these bigger schools, it is interesting to see how the NCAA somehow felt that the players who are the product were not responsible for being compensated. Below are the average salaries of coaches by power-5 conference. 

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As reported by Yahoo Sports Head Coach of Clemson, Dabo Swinney was outspokenly against the NIL deals being made legal. Although he states that he is not entirely against it, he feels that it would hurt their education. Swinney says college football is an "absolute mess and a train wreck" and there is going to be a "complete blowup." He may be right. But when asked why he is against players being paid, he uses the "collegiate model" excuse and says he is "against anything that devalues education." Swinney insists he is not anti-NIL, just against players being paid like professionals.

 

Swinney continued, “The head of Delta probably makes a lot more than the people who are checking your baggage in, but those people are as vital as anybody," he told ESPN. "None of us set markets on what we do. It’s a free market we live in, in anything."

Swinney and other coaches across the country feel this way about players being paid. As a student-athlete, some of the leaders for the teams are against them being compensated. The first outright wrong thing about Swinney’s statement is that comparing student-athletes to Delta employees does not make any sense since employees are paid and collegiate athletes formerly were not allowed. 

 

Secondly, student athletes across the country have far more risk than an everyday employee at Delta. Swinney attempted to use this as a comparison for athletes but It does not make sense. Do Delta employees risk head injury on a game-to-game basis? 

 

Harvard Medical School released a study done by multiple doctors in different areas of study, including the assistant professor of medicine at the University of Colorado School of Medicine Christine Baugh, PHD,MPH professor of health economics Thomas G. Mcguire, PHD associate professor of health care policy Laura A. Hatfield, and other colleagues.  

 

In their study, they have found that collegiate athletes significantly underestimate the risk that they are taking on their bodies playing collegiate sports.

 

In a survey given to over 300 football players, over 33% reported a concussion as recently as two seasons ago. Also over 40% of these athletes reported non concussion injuries in the last two seasons. 

 

As the Harvard study put it, These findings cast doubt on the assumption that college athletes know enough about the health risks of sports participation to make informed decisions. The study team recommends that individual colleges should play a more active role in ensuring college athletes are not exposed to excessive risks in their sports participation. 

 

“I haven't had too many injuries until I went to college, injuries are tough to get through,” said Scott. 

 

Collegiate Athletes are already dealing with limited time, limited assistance when it comes to business and also health risks. With all of these being said it was no wonder why student-athletes felt that they should be compensated for their risks.

 

These student-athletes are under the same if not more risks health wise then their professional counterparts. Physical risks play a huge role in determining what is professional vs Amateur. 

 

Eric Legrand, was only 20 years old when he suffered a spinal cord injury on the field during an in-game collision. Legrand ended up being paralyzed from the neck down. Legrand is a part of the collegiate athletes that were not as lucky to be able to go through their athletic career. Yet he is a perfect example of the risks that these athletes take and why they should be compensated for that. 

 

Many college athletes choose to leave college early in order to not risk their chance at professional sports. Imagine if the athletes were able to be paid while getting their education. This would entice more athletes to stay in college and finish their education. 

 

All of these possibilities could and would be made by the process of the legalization of NIL deals.