USA TODAY International Edition
NCAA takes step toward allowing pay for athletes
College governing board still has many hurdles before final approval.
From the moment the NCAA acknowledged it had no choice other than allowing college athletes to earn income from their name, image and likeness, it has been trying to thread a needle.
How do you loosen restrictions to make the system fair for athletes, but also prevent a free- for- all that turns recruiting into a bidding war? How do you satisfy lawmakers looking to capitalize on an issue with bipartisan momentum while also controlling your own destiny as an organization?
Even on its best day, with issues much smaller than this one, the NCAA can’t make everyone happy. But with something as expansive and revolutionary within the college sports context as name, image and likeness, there was zero chance that all its critics would be satisfied.
Wednesday’s announcement from the NCAA Board of Governors, which approved a broad set of recommendations to address name, image and likeness, wasn’t an arrival at the finish line, but rather a major ideological hurdle cleared with several more procedural hurdles to come. The broad takeaway is that college athletes will be allowed to make money in ways they never were before: by negotiating endorsement deals, making public appearances and capitalizing on their social media followings. Set all the other arguments and tangential issues aside for a moment. That’s a big, big deal.
“The member schools have embraced very real change that is necessary to modernize our name, image and likeness rules,” NCAA president Mark Emmert said. “We also see the challenges in front of us.”
The issue now is how college sports leaders arrive at a package of rules by January’s NCAA convention to make this large philosophical leap into workable reality by the 2021- 22 academic year – and whether it will be enough to satisfy both the state- level lawmakers who pushed over the first dominoes and Congress, where the NCAA wants legislation that would amount to an antitrust exemption.
“We have to hold their feet to the fire to ensure student- athletes in fact get the rights they deserve,” said Califor
nia state Senator Nancy Skinner, who sponsored the California bill in February 2019 that sparked a nationwide pressure campaign on the NCAA.
Here are five questions and answers about what the NCAA did and didn’t do Wednesday and some of the thorny issues that could come up over the next several months.
1. What action did the NCAA take?
Last fall, the NCAA Board of Governors tasked a working group led by Ohio State athletics director Gene Smith and Big East commissioner Val Ackerman with collecting feedback on how to modernize name, image and likeness rules and then come up with a set of recommendations. Essentially, the working group recommended that athletes should be able to make money through third- party endorsement deals, social media activity or side businesses as long as schools aren’t involved in arranging those opportunities and they are not used as recruiting inducements.
The Board of Governors approving those broad concepts means all three NCAA divisions will now have to craft them into specific legislative proposals that will be reviewed by schools this fall and voted on in January. So while there are still lots of details to work out, presidential approval allows the process to continue.
2. What are the details that need to be hashed out?
Most of it revolves around how the NCAA is going to monitor and regulate what name, image and likeness activities athletes participate in. Some of it will be fairly easy to find consensus, like rules that prevent athletes from endorsing alcohol and tobacco products or gambling web sites. But the stickier part is whether the NCAA can prevent a marketing or endorsement opportunity from serving as a proxy for recruiting.
“Our athletes can freely choose which school they want to attend. They’re not restricted by a draft or a passport so it’s important in our system of athlete procurement that we maintain some level of fairness,” Ackerman said. “Guardrails on boosters, which are still in development, will mitigate the possibility of improper inducement or the involvement of overzealous individuals in both the recruitment and transfer environment.”
In essence, the NCAA is going to try to build a system that would require athletes to disclose their name, image and likeness income and then monitor for irregularities. College coaches and pro athletes, for instances, do all kinds of national and local endorsements at rates negotiated by their agents that are largely based on comparable contracts. The same principle would apply here. If the range of those sponsorship deals for a car dealer was valued between $ 50,000-$ 100,000 but someone was offering a college athlete $ 500,000, it would raise a red flag.
The NCAA already has similar regulations around summer jobs to make sure boosters aren’t funneling money to athletes through no- show jobs.
The question is who compiles that data on marketing deals and how it will be used. The idea of the NCAA using a third party on this issue has some legs.
“It’s a new space in our world,” Smith said. “We know this is a new business, so to speak, so having historical data to try to ascertain what is appropriate compensation for someone who might be paid for X number of mentions relative to a particular business over a twoweek period still has to be evaluated.”
3. Does this mean the EA Sports college football video game is coming back?
No, at least not for awhile. The recommendations endorsed by the presidents do not address group licensing, which would be necessary for the NCAA to make a deal with a video game company and then distribute that revenue among the athletes for use of their name and likeness. For that to happen, athletes would have to negotiate their cut, which in the pro leagues is done by the respective players’ union. College athletes don’t have a union, and the only significant attempt to start one failed within the last decade. ( It’s also complicated by various state laws regarding unions and public institutions.) Ackerman called the concept “unworkable.”
4. What will be the role of agents and shoe companies?
The two longtime bogeymen of college sports are going to have some role to play in the future of name, image and likeness, but it’s unclear just how much.
Athletes will be able to employ agents or advisors to assist them with marketing opportunities, but the NCAA and conferences are going to be keen on making sure there is some standard of certification for them. The shoe companies could be a more difficult conversation.
In the final report to the Board of Governors, the working group states that it will be up to each division “whether certain categories of third- party businesses ( e. g., athletics shoe and apparel companies) should be precluded from, or have limited participation in, the newly permitted activities, due to their history of encouraging or facilitating recruiting and other rules infractions.”
That is, of course, a direct reference to revelations from the FBI’s investigation into college basketball recruiting that showed how Adidas marketing executives were funneling money to basketball prospects and steering them toward certain schools.
Regardless, potential conflicts that arise from shoe and apparel deals will need to be dealt with in legislation, particularly for basketball but also for other sports like swimming where a company might want to sponsor a college athlete whose school has a deal with one of their competitors.
5. What will Congress do?
The NCAA has been adamant that 50 states having different name, image and likeness laws would be untenable for a national organization trying to conduct a fair championship, and it’s certainly possible if not likely that some type of federal legislation will pass as Emmert and Board of Governors chairman Michael Drake of Ohio State were involved in frequent discussions with Congress before the COVID- 19 pandemic hit.
How that wild card plays into the timing of a bill, not to mention the upcoming election cycle, is unclear.
“We believe congressional support would be very helpful and we’ll be working to achieve that,” Drake said.
But whether the NCAA will get what it wants – essentially an antitrust exemption – is going to be a major point of contention. In one of the most disingenuous moments of his tenure, Emmert said Wednesday that efforts over the years to “improve the student- athlete experience have often been met with increased litigation and challenges that significantly limit the NCAA’s ability to address those needs and opportunities.” Thus, the NCAA wants protection from lawsuits that might stem from name, image and likeness freedom. It’s doubtful lawmakers will buy that.
And based on initial reaction Wednesday, including a scathing critique from state Rep. Chip LaMarca, who authored the Florida bill, it’s unlikely state legislatures are going to back off. That will only heighten the NCAA’s need for Congress to do something.
“I think it’s appropriate to have guardrails on boosters, for example, but we have to make sure the rules aren’t too restrictive beyond that,” Skinner said. “I want to encourage states to keep the pressure on and ensure that the ultimate rules are not overly restrictive so that student athletes aren’t exploited and while I think there’s progress, my worry is that NCAA’s move to get congress for example to preempt state action gives them too much latitude to make rules that wouldn’t be fair.”