Money or Nothing: An Analysis of NCAA’s Name, Image and Likeness Rules

Photo by Ben Hershey on Unsplash

Patrick Mullinger, Associate Member, University of Cincinnati Law Review

I. Introduction

Money drives everything. Every business—from a local bakery to the National Collegiate Athletic Association (“NCAA”)—relies on money to keep afloat. Unlike a small business, however, the NCAA derives its money from a single product, the athletes. Until recently, these athletes had no avenue to be paid for their own name, image, or likeness used for commercial purposes. This all changed when a Name, Image, and Likeness (“NIL”) law was introduced in California.[1] NIL rules are not just a ploy to attract student-athletes to various schools; rather, they provide opportunities for many student-athletes to put meals on the table, provide comfort in a place far from home, and take ownership of their own name.

Part II of this article will focus on the short history of NIL rulemaking in the modern sports and legal world. Part III will address the new NIL rule from the perspective of two former—now professional—NCAA athletes. Lastly, Part IV will analyze the benefits of the NIL rule in the NCAA.

II. The Short History of NIL Rules

In 2016, student-athletes began to realize the impact their voices can have on their communities, leading to a rise in student-athlete activism.[2] That year, thirty Black University of Missouri’s football players threatened boycotts over racial injustices on their campus.[3] The words of these football players spread across the nation, igniting a revolution in student-athlete activism.[4] While these protests were focused on racial injustices at singular institutions, the message had been sent that student-athletes are emboldened in their ability to create positive change.[5]

The debate for paying student-athletes stems from the fact that college athletics are an extremely profitable business.[6] Schools benefit from both extremely lucrative contract television deals and increased student enrollment from positive athletic performance.[7] Student-athletes, however, received almost none of these benefits, and their calls for change went unanswered.[8] However, state legislatures finally heard the cries on September 19, 2019, when California passed legislation which prohibited punishment for student athletes who accept endorsement money.[9] This statute—titled the “Fair Pay to Play” Act—allowed for college athletes to secure endorsements and sponsorship without losing scholarship eligibility.[10] The Act makes it illegal for colleges to deny student-athletes endorsement deals or other revenue streams for their own name, image, or likeness, allowing student-athletes autonomy over themselves in a way which was previously denied.[11]

About a month later, the NCAA’s board of governors agreed to modernize their NIL rules, directing all three NCAA divisions to make rules by 2021 allowing for athletes to accept college endorsement money.[12] By April 2020, a working group provided details on how Division I should change its rules, creating the first legitimate pathway for student-athletes to collect on endorsement deals.[13]  However, the NCAA’s Division I Council indefinitely delayed the vote in 2021, creating a significant hurdle for student-athletes.[14] The Supreme Court’s ruling in NCAA v. Alston determined the NCAA could not limit the amount of educational benefits participating schools give to their student-athletes.[15] The Court stated that the NCAA was subject to Antitrust laws because of their monopolistic power over NCAA schools and their ability to restrict possible competition.[16] Finally, on June 30, 2021, the NCAA’s Board of Directors adopted a temporary rule opening the door to NIL endorsements after Alston.[17]

So far, twenty-eight states have adopted their own version of the California NIL law, granting student-athletes the ability to profit off their own name, image, or likeness.[18] The holding in Alston, the state laws, and the rise of student-athlete activism will likely become a force for change in a landscape that desperately needs reforming.

III. The Perspective of Two Former Student Athletes, Now Professional Athletes

Cameron Junker, a former Moeller High School and Notre Dame University pitcher, was drafted in the tenth round of 2019 MLB draft by the Pittsburg Pirates.[19] Junker believes that the NIL rules are necessary for college athletes.[20] The new NIL rules allow student-athletes to pursue deals to compensate their time spent on sports, rather than working side jobs to pay for their living expenses.[21] Additionally, Junker stated that the student-athletes are bringing fans, and thus reserve the right to be compensated for their “hard-work and talents.”[22]

Michael O’Brien, a former Moeller High School Graduate and NCAA golfer for St. Joseph’s University,[23] is now pursuing a professional golf career. O’Brien shares the views of Junker, believing that the NIL rules grant students the ability to profit, rather than just allowing schools to be the sole beneficiaries of students’ talents.[24] While he knows this is a much-needed step, he also worries about the dilution of the on-field product for lower-tier Division I, Division II, and Division III schools.[25]

IV. The NIL Temporary Rule Should Become Permanent, and More States Should Adopt NIL Laws to Benefit the Student-Athletes

The NIL rule benefits athletes, local businesses, and the college campus student-athletes attend. Additionally, this rule empowers student-athletes to create their own brand,[26] providing a sense of ownership over oneself that was not existent prior to the NIL rules. Further, the NIL rule allows for diverse athletes to generate revenue while still pursuing a degree and playing the sport they love.[27]

Of course, with any major shift in NCAA rules, critics inevitably make their dissents heard.[28] These critics argue that the rules will cause the Transfer Portal[29] to “go nuts,” create tax issues for athletes, cause conflicts between athletes at the same school due to the varying endorsement deal sizes, and contribute to the “perversion of amateurism” in NCAA athletics.[30] However, these critiques are easily rebuttable. First, the transfer rate has been increasing since the Portal’s introduction, well prior to any NIL rule or law.[31] Secondly, the NCAA, or individual schools, could require student-athletes to meet with a tax consultant provided by the school to navigate the tax process. The issue of endorsement deals between students and different sized schools seems to be a legitimate concern; however, it is arguable that the top schools still received high-level talent even before the NIL rule and will continue to attract these students regardless of possible NIL deals. Lastly, the “perversion of amateurism” argument fails to capture the day-to-day realities of many student athletes. The NCAA is a billion-dollar business, profiting from student talent while some of these same students go hungry—is it fair the student athletes only receive some compensation from outside sources the NCAA doesn’t profit from?

V. Conclusion

The NIL temporary rule creates a positive avenue for student-athletes to profit off their own name. This rule creates a legal foundation for an equitable route of income for these students who put large amounts of time into their respective sports. In addition, the holding in Alston signified that the NCAA could no longer act as in a monopolistic manner, thus creating balanced fairness between the workers—the students—and the NCAA board. The state legislatures that have enacted these NIL laws also benefit the student-athletes because it is forcing the NCAA to adopt their measures in a timely manner, instead of continuously pushing back the issue.

While the concerns with NIL deals are valid, student-athletes deserve to be compensated, especially when they enrich the schools they attend. These students are working to better themselves, their futures, and, in turn, their schools. It is only fair that these student-athletes have autonomy over their own name, image, and likeness so that students profit alongside the NCAA, and the schools.

---

[1] See Dan Murphy, California defies NCAA as Gov. Gavin Newsom signs into law Fair Pay to Play Act, ESPN (Sep. 30, 2019), https://www.espn.com/college-sports/story/_/id/27735933/california-defies-ncaa-gov-gavin-newsom-signs-law-fair-pay-play-act [https://perma.cc/R2CC-FUGM] (discussing the bill giving student-athletes an opportunity to earn money off endorsement deals).

[2] See Student-athletes Making Their Voices Heard on Controversial Issues, Diverse (Updated May 9, 2016), https://www.diverseeducation.com/sports/article/15098465/student-athletes-making-their-voices-heard-on-controversial-issues [https://perma.cc/QC3T-4SFC].

[3] Id.

[4] Id.

[5] Id.

[6] See Jason Gurdus, Protection Off of the Playing Field: Student Athletes Should be Considered University Employees for Purposes of Workers’ Compensation, 29 Hofstra L. Rev. 901 (2001). See also NCAA v. Bd. of Regents, 468 U.S. 85, 111-12 (1984) (recognizing that National Collegiate Athletic Association (“NCAA”) television contracts have a commercial nature).

[7] Id. at note 5, 907.

[8] See Mary Kate McCoy, Survey: Nearly A Quarter of Division I Athletes Face Food Insecurity, Wisconsin Pub. Radio (Wed. May 6, 2020, 6:20 AM), https://www.wpr.org/survey-nearly-quarter-division-i-athletes-face-food-insecurity [https://perma.cc/42SH-BPUV] (stating that although many students receive scholarships to attend schools, there will still a large number of students who could not afford food due to inability to get jobs).

[9] See Murphy, supra note. 1. See also Cal. SB 26, 2021 Gen. Assemb., Reg. Sess. (Cal. 2021).

[10] See Benjamin Tulis, California Fair Pay to Play Act to Become Effective September 1, 2021, JDSupra (Sep. 1, 2021), https://www.jdsupra.com/legalnews/california-fair-pay-to-play-act-to-1720393/.

[11] See Michael McCann, What’s Next After California Signs Game Changer Fair Pay to Play Act Into Law?, Sports Illustrated (Sep. 30, 2019), https://www.si.com/college/2019/09/30/fair-pay-to-play-act-law-ncaa-california-pac-12.

[12] See Dan Murphy, Everything you need to know about the NCAA’s NIL debate, ESPN (Sep. 1, 2021) https://www.espn.com/college-sports/story/_/id/31086019/everything-need-know-ncaa-nil-debate [https://perma.cc/5NMB-GXQ6].

[13] Id.

[14] Id.

[15] See National Collegiate Athletic Association v. Alston, 141 S. Ct. 2141, 2166 (2021) (striking down the NCAA’s special anti-trust treatment argument for “special educational purpose”). See also, Marc Edelman, What Happens Now that the Supreme Court has Decided Alston v. NCAA?, Forbes (June 22, 2021 at 10:34 AM), https://www.forbes.com/sites/marcedelman/2021/06/22/what-happens-now-that-the-supreme-court-has-decided-alston-v-ncaa/?sh=410feeed7393 [https://perma.cc/XP76-7HEV].

[16] Id. at 2151.

[17] Id.

[18] See NIL Legislation Tracker, Saul Ewing Arnstein & Leher LLP., (last visited Nov. 8, 2021), https://www.saul.com/nil-legislation-tracker.

[19]See Cameron Junker Profile, MiLB.com, https://www.milb.com/player/cameron-junker-669668 [https://perma.cc/LKC6-XLV8] (last visited Nov. 5, 2021).

[20] Telephone Interview with Cameron Junker, Professional Baseball Player, (Nov. 5, 2021).

[21] Id.

[22] Id.

[23]See Michael O’Brien Profile, St. Joseph’s Hawks Men’s Golf, https://sjuhawks.com/sports/golf/roster/michael-o-brien/3865 [https://perma.cc/CL8E-3BZB] (last visited Nov. 5, 2021).

[24] Telephone Interview with Michael O’Brien, Professional Golfer (Nov. 5, 2021).

[25] Id.

[26] See Lois Elfman, Opportunities Abound for Collegiate Athletes to Now Financially Benefit From the Use of NIL, Diverse, (Sep. 24, 2021), https://www.diverseeducation.com/sports/article/15115007/opportunities-abound-for-collegiate-athletes-to-now-financially-benefit-from-the-use-of-nil [https://perma.cc/Z9EG-BU2T].

[27] See Alexandra Pecharich, Compensation for Student-Athletes? Everything You need to Know about ‘NIL’, FIU News (July, 26, 2021, 10:18 AM), https://news.fiu.edu/2021/big-bucks-for-student-athletes-everything-you-need-to-know-about-nil-compensation [https://perma.cc/R94X-UNSD].

[28] See Terence Moore, NCAA Had No Choice, But NIL Rule Will Damage College Football and Basketball, Forbes (July 6, 2021, 6:00 AM), https://www.forbes.com/sites/terencemoore/2021/07/06/the-ncaa-hadnt-a-choice-but-nil-rule-will-damage-college-football-and-basketball/?sh=41f2768f2c0d.

[29] See Jeff Borzello, What is the Transfer Portal?, ESPN (Apr. 16, 2019), https://www.espn.com/mens-college-basketball/story/_/id/26529645/what-transfer-portal [https://perma.cc/QAN5-GLJ4] (stating the Transfer Portal is a database of every player who has interest in transferring from his or her current school, for every collegiate sport).

[30] Id.

[31] See Research on Student-Athlete Transfers, NCAA, https://www.ncaa.org/about/resources/research-student-athlete-transfers [https://perma.cc/43U2-YEDE] (last visited Nov. 5, 2021).