Gregery Schmidt
Name, Image, and Likeness in College Sports
Traditionally, college athletes have always been considered amateurs rather than professionals. In essence, this is a legal distinction. The distinction is contained in the fact that amateurs cannot be paid for their contributions to the college team for which they are playing. Recently, this has become more of a controversy. The traditional argument is that considering the amount of money that is being made by the universities that participate in the NCAA, it seems fair that the athletes would be able to receive compensation. As a practical matter, some of the athletes do attract fans that spend money at the games they attend. Moreover, the real-world distinction between a college sports athlete and a professional sports athlete seems to be more form than substance. In effect, both athletes are contributing the same effort to their teams. Importantly, most of their contribution creates revenue, but good will also probably comes into play.
In 2021, the NCAA agreed to change its approach in terms of name, image, and likeness. This had the effect of relaxing the rules. The relaxed approach revolved around the concept of a right to publicity. The right to publicity is a legal right that protects a person’s identity and commercial value from being used without their consent.[1] The most common way in which this invoked is when a person identity is being used to promote a business or product without their permission.[2] One can envision a scenario where this would come into play. For instance, a commercial for one of the sponsors of the stadium uses the quarterback of the university in their most recent commercial. Presumably, if they did so this would cause a potential lawsuit because of the use of that person’s identity.
President Trump appointed a Supreme Court Justice who has had a strong relationship with sports. Brett Kavanaugh was a basketball coach for a long time before becoming a Supreme Court Justice. He has often mentioned the importance of sports in American society. Presumably, this is because of the character building that this entails. In June of 2021, the Supreme Court release an opinion stating that the NCAA could not prevent schools from providing educational related benefits to student athletes. In a concurring opinion, Brett Kavanaugh stated that other NCAA rules prohibiting compensation could potentially trigger antitrust considerations.[3] In response the NCAA revised its rules to forestall further legal challenges. Currently, college athletes have the right to use their name image and likeness to generate compensation so long as it complies with state law relating to name, image, and likeness.[4]
There is a heated debate going on within the NCAA fandom revolving around whether athletes should be able to be compensated for use of their name, image and likeness. Now that it is up to the states, the voters now get to have a say as to what athletes are entitled to. To some, the economic argument tends to take center stage. The argument goes similar tot the one already mentioned regarding the minimal difference between the role that college athletes play compared to professional athletes. It seems that this would be fair to some degree considering the contributions that athletes make to their teams. Just like many aspects of American society, people are often considering the potential hidden market contribution of various people/players within their domains. This logically would make student athletes of prime concern considering that the argument has been going on for years.
However, on the other side of the ledger, there is an argument that this type of compensation would seem to take away from the action-packed nature sports. For the athletes currently who are not receiving compensation for their contributions, the prospect of potentially receiving it serves as a motivator for the athletes to become the best that they can be. Moreover, it has been said that this makes the game faster than it otherwise would be.[5] In effect, it makes the games more action-packed. This is often seen as a justification for why some sports fans prefer college sports over professional sports due to the passion that seems to be present in the game. Perhaps the area where this is the most visible is in the area of the National Basketball Association. During a college basketball game, the game seems faster and more intense. In a professional game, the players seem to take it easy. It seems like the passion is out of the game. This seems to be even true in the playoffs. The game does not seem to be as fast or passionate as the games that occur during March Madness.
State laws governing NIL vary As far as recruiting, with some of the best athletes coming from underserved communities this will probably lead to an incentive for some of those athletes to go to universities that pay them. Over time, this may lead to more universities deciding to pay the athletes because of the recruitment advantage that they will receive.
[1] “What is the right to publicity”, International Trademark Association, Topic, Accessed September 1, 2024, https://www.inta.org/topics/right-of-publicity/#:~:text=What%20Is%20Right%20of%20Publicity,or%20photograph%E2%80%94for%20commercial%20benefit. Web.
[2] “College Athletes Name, Image, and Likeness Rights under the Law”, Justia, Sports Law Center, Accessed September 1, 2024 https://www.justia.com/sports-law/name-image-and-likeness-rights-for-college-athletes/#:~:text=Most%20people%20have%20a%20right,their%20participation%20in%20college%20sports. Web.
[3] Amy Howe, “NCAA Athletes win 9-0 on Educational perks as Kavanaugh calls out ban on direct payments”, SCOTUSblog, Opinion Analysis, June 21, 2021 Accessed September 1, 2024, https://www.justia.com/sports-law/name-image-and-likeness-rights-for-college-athletes/#:~:text=Most%20people%20have%20a%20right,their%20participation%20in%20college%20sports. Web.
[4] Michelle Breitlig Hosick, “NCAA Adopts Interim Name, Image, and Likeness Policy” NCAA, Media Center, June 30, 2021, Accessed September 1, 2024, https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-likeness-policy.aspx Web.
[5] Aj Shifflet, “College sports are more entertaining than professional leagues”, Wooten Common Sense, Sports, March 10, 2024, Accessed September 10, 2024, https://woottoncommonsense.com/20819/sports/college-sports-are-more-entertaining-than-professional-leagues/ Web.
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