The NCAA has traditionally restricted college athletes from accepting any endorsements or compensation related to their participation in college sports. But less than a month after California enacted the Fair Pay to Play Act, which will prohibit the NCAA from preventing college athletes in the state from profiting off their commercial identities starting in 2023, the NCAA’s board voted unanimously to allow students across the country to benefit from the use of their “names, images, or likenesses.”
Name, Image, and Likeness
The right to profit from the commercial use of one’s name, image, and likeness, referred to as the right of publicity, prevents others from exploiting one’s identity without consent. Arguably, the NCAA’s previous policies interfered with athletes’ rights of publicity—while the NCAA and its member schools profited from college athletes’ names, images, and likenesses, the athletes received no compensation.
Previously, the NCAA has been accused of antitrust violations based on its prior policies regarding college athletes’ compensation. In O’Bannon vs. NCAA, in the Northern District of California, a former UCLA basketball player argued that the NCAA should allow college athletes to retain economic control over their own commercial identities and that the NCAA’s policies were anticompetitive. While that case did not result in an outright win for college athletes, Judge Wilken found that the NCAA’s compensation rules were evidence of cartel behavior and an unlawful restraint on trade, and that the schools should be allowed to offer full cost-of-attendance scholarships, including previously excluded cost-of-living expenses. The Ninth Circuit ultimately affirmed the ruling in relevant part.
Judge Wilken also issued another NCAA / college athlete opinion in an ex parte antitrust litigation earlier this year in which she concluded, once again, that the NCAA had violated antitrust laws. In that instance, Judge Wilken discussed how college athletes who join elite college sports programs must accept school-determined compensation, regardless of whether such compensation accurately reflects the value of their services. The case is currently on appeal to the Ninth Circuit.
NCAA Response to Fair Pay to Play Act
At first, the NCAA pushed back against the Fair Pay to Play Act, by proposing to ban California member colleges from competing for NCAA championships altogether. But the proposed ban soon prompted California State Senator Nancy Skinner to argue that retaliation from the NCAA would, once again, violate antitrust laws.
The NCAA retreated somewhat in its subsequent vote by allowing students to benefit from the use of their names, images, or likenesses so long as it occurs “in a manner consistent with the collegiate model.” The NCAA has yet to formulate the specifics of its plans, however, or clearly define its intent. While its recent announcement is a step closer to allowing college athletes to monetize their identities, the NCAA still imposes significant restrictions. Senator Skinner responded to the uncertainty by announcing via Twitter that California “won’t accept any arbitrary limitations on college athletes’ right to their name, image, and likeness.”
The NCAA’s new vote, however, does forecast an environment in which college athletes would enjoy more control of their commercial identities and profit from their names, images, or likenesses more appropriately.