• Villanova Sports Law Blog

The Need for the NCAA to Adopt a Nationwide Rule on Players Image and Likeness


By: Tim Keith

Up until recently, no college athletes could obtain compensation for any aspect related to their collegiate athletic careers, regardless of its relation to on field performance. For a long time, both the majority public and political opinion was that scholarships were appropriate “compensation” for college players to receive. In fact, as recently as 2017 a Seton Hall Sports Poll showed that 60% of those surveyed thought that scholarships were appropriate compensation.[1] However, in only a few short years, that idea has flipped in the eyes of the public, with the same pollster now showing that 60% of people think college athletes should get paid in addition to scholarships. This begs the question: what caused this changed and how does it affect the NCAA’s approach to amateurism in college sports?

On October 19,2019, the governor of California signed SB-206 into law.[2] With a stoke of the pen this bill has the ability to completely change the landscape of college athletics. The law will prohibit schools, athletic associations, and conferences from prohibiting athletes from profiting on their name image and likeness. Importantly, it does not allow schools to pay the athletes any type of stipend or salary for their participation. Additionally, it exempts community colleges from this rule and does not go into effect until January 1, 2023. In essence, this law will allow an athlete to make money off of jersey sales, sport memorabilia, endorsements, etc. While the change in public opinion in regard to athlete compensation cannot be said to be only related to this bill, it is not a coincidence that public opinion has been documented to be much higher after this was enacted. Furthermore, there are currently 16 states that have introduced a similar bill or are planning to in the future.[3] The NCAA still believes in the amateurism model, but if more states enact similar laws how long can that last?

Starting January 1, 2023, the balance of power in recruiting will shift dramatically. California schools will now have a weapon unique only to them: the ability for their athletes to make money while playing a sport. Only time will tell how effective of a sell this will be, but presumably they will have the ability to recruit more effectively than the rest of the country. Instead of a team’s facilities, coaching, culture, and history determining a recruit’s decision, these factors will quickly be usurped by an athlete’s ability to get an endorsement deal. As more states adopt these rules, this problem will only grow, forcing players into playing in the select states that allow this to happen. In the spirit of fair play and sportsmanship, how then do we combat the impending inequities? On one hand, the NCAA can keep a laissez faire attitude and take no action towards regulating this, or they can create similar rules similar to SB-206. By doing nothing, the problem remains and arguably could be even worse. Given the political nature of these bills, it is unlikely, impossible even, that all 50 states would have the exact same rules governing athlete compensation. Once again this would create a system of imbalances across the country. With that said, if the NCAA were to update their bylaws and allow athletes to get compensated on their image and likeness, this would ensure that athletes are treated fairly and the fairness across the NCAA remains intact.

The writing is on the wall and the public has spoken. Compensation for college athletes on the horizon but what remains to be seen is if the NCAA will be a part of it. Failure to do so could have ramifications outside of just the finances of the players, and the longer they wait the greater this risk becomes.


References

[1] Daniel Roberts, Poll 60% of Americans support college athletes getting paid endorsements, Yahoo Finance (Ocotber 8, 2019), https://finance.yahoo.com/news/poll-60-of-americans-support-college-athletes-getting-paid-endorsements-122801067.html

[2] SB-206 Collegiate athletics: student athlete compensation and representation.

[3] Roshaun Colvin and Joshua Jansa, California’s Fair Pay to Play law for college athletes has other states racing to join up. Here’s why, Washington Post (November 18, 2019), https://www.washingtonpost.com/politics/2019/11/18/californias-fair-pay-play-law-college-athletes-has-other-states-racing-join-up-heres-why/