NCAA fearful of likeness changes
The biggest motivation at the core of why NCAA president Mark Emmert and his constituents oppose giving college athletes the right to trade on their name, image and likeness isn’t greed. It’s not the belief they should be rich while the athletes who pass through their institutions remain poor. And it’s not really even a belief that the concept of amateurism is something particularly special or worth preserving.
The real problem they have is fear. When you talk to athletics directors without notepads or tape recorders, many of them will acknowledge privately that big-time college athletics has grown too big, too rich, too corporate and too hypocritical to forever maintain a system that prevents athletes who clearly have monetary value from receiving anything beyond their scholarship. They just don’t know what will happen when you take those restraints away, and they’re afraid that whatever comes next won’t look much like the college sports they’ve known for decades.
But it doesn’t have to be that way. And, in fact, there are multiple theories on how colleges could put reasonable boundaries on name, image and likeness payments to prevent a system where, for instance, an Alabama football or Kentucky basketball booster offers the top 17-year-old recruit in the country a $200,000 check for an autograph signing.
In the end, if done correctly, the NCAA could set up a system for name, image and likeness rights that – from a fans’ point of view – doesn’t necessarily change much at all. And, if the NCAA is smart, it will do that proactively rather than wait for more states to adopt similar bills to the one California Gov. Gavin Newsom signed on Monday, spend millions upon millions in legal fees fighting it out in court and put its fate in the hands of legislators and judges.
“The NCAA is its own worst enemy on this,” sports economist Andy Schwarz said. “The sort of things it seems like they’re doing as rearguard actions to having to fend off the sin of putting a dollar amount on a check and giving it to an athlete – which they do anyway – to make it look like they’re not paying athletes, it’s damaging them economically.”
There are different versions of what a name, image and likeness world might look like. Perhaps the most extreme example is a completely unfettered free market where players and their families or agents are cutting deals right and left with companies or individuals in exchange for that player to attend a particular school.
Putting aside the fact that this is already happening to a large degree in an under-the-table manner, bringing it into the sunlight would likely be self-regulating to some degree. For a business sponsoring a college athlete, there’s a pretty big difference between signing a star player with a significant personal brand like Alabama quarterback Tua Tagovailoa to a six-figure endorsement deal and offering huge amounts of money to a recruit who, in the end, is still somewhat of an unknown quantity.
“I understand the concerns, but right now we have a lucrative black market and it’s hear no evil and see no evil,” said David Ridpath, am associate professor of sports management at Ohio University. “I think a lot of these people who pay under the table don’t want to be out in the open doing it. I think they’ll be constrained in accordance with the market. Will it be perfect? Of course not. But if it’s out in the open you have a better chance to regulate it.”
And the NCAA could put in some of those regulations on the front end. Tulane Sports Law Program director Gabe Feldman pointed to NCAA bylaw 12.4.1, which allows college athletes to go out and get jobs but with the condition that it’s “Only for work actually performed; and at a rate commensurate with the going rate in that locality for similar services.”
Feldman thinks the NCAA could apply the same type of market rate guidelines to name, image and likeness payments and deals the athletes would cut on their own.
“I think there should be a standard contract, a form agreement, something that has to be approved not only by the institution but by the NCAA or a third party clearinghouse and all sorts of checks and regulations put in place to protect the student-athlete to make sure it isn’t abused,” Feldman said. “I also think it should also be consistent with the educational mission. Some people roll their eyes when I or others say that but there is a way to have us enhance the academic experience and be an educational opportunity and I don’t think that’s paternalistic. I think that’s consistent with what the NCAA at its best is about.”
The Drake Group, a think tank Ridpath is part of that advocates for integrity in college sports, recently put out a position paper on how name, image and likeness could fit within the NCAA model. Among the recommendations are drawing lines between boosters and corporations that want to use college athletes as endorsers, compelling athletes to disclose the outside income they earn and any use of an athletes’ name, image and likeness for profit should be done without the name or logo of their school.
“It’s not like every booster and company is going to come out of the woodwork and say we’re going to give you $2 million when you could give that same $2 million to James Harden or Tom Brady,” Ridpath said. “You have some comparative market values you can bring out.”
There’s also another path the NCAA could take, and it’s one endorsed by – of all people – former shoe company executive Sonny Vaccaro, who changed college sports forever by signing basketball coaches to endorsement deals with Nike in the 1980s.
Vaccaro’s theory is simple: Schools and conferences should take every media and marketing deal they profit from and cut the athletes in on a fixed percentage that would be distributed equally based on number of games played in. It could even be held in escrow and distributed to the athletes after they finish their eligibility.
“If you played in the games, they monetized you, so you get a proportional cut,” Vaccaro said. “It’s not complicated.”