The landscape of collegiate sports is ever-evolving. Collegiate athletes are bigger, stronger, and faster than in previous eras and are being recruited at much younger ages than before. As more talent flows into athletic programs, colleges and the NCAA have been able to profit not only from the abilities of student-athletes, but also from their names and images. This is certainly not a new problem. Colleges continue to build NFL-like stadiums and state-of-the-art facilities––but where is the compensation for student-athletes who commit over 40 hours per week to their respective sports? If the NCAA continues to ignore solutions, then its student-athletes will continue to be manipulated and abused. I believe the most optimal solution would be to employ an Olympic Model of compensation. This model would allow for student-athletes to obtain and get paid for endorsements, and it would likely lead them to trademark their personal intellectual property, a move which would also serve the interests of the NCAA.

As a result of the NCAA’s amateurism policy in Section 12 of the NCAA Bylaws, a student-athlete is ineligible if he or she “accepts any remuneration for or permits the use of his or her name or picture to advertise, recommend, or promote directly the sale of a commercial product.” The NCAA also requires student-athletes to proactively prevent unauthorized commercial use of his or her name. The obvious problem here is that ordinary college students are able to license and profit from their name, likeness, and images. Additionally, all students have a legal right to profit from their personal intellectual property. Under Section 1 of the Sherman Antitrust Act, any contract, combination or conspiracy in the restraint of trade shall be declared illegal. Surprise, surprise, the NCAA is committing an illegal act against its student-athletes. So, what now?

While player compensation has a been a problem in the NCAA since its conception, I believe the solution is not overly complicated. Under the Olympic model of compensation, student-athletes would be able to act as endorsers for various companies and get paid for their individual efforts. According to sports lawyer Marc Edelman, the primary step in this process would be to modify the NCAA bylaws to allow for student-athlete licensing as long as the students do not use the trademarks of the NCAA or their university in a way that may be deemed as an endorsement.

The NCAA’s ban on player payment has posed a huge barrier to allowing student-athletes to use their personal trademarks in commerce. Thus, a significant advantage of using the Olympic system is that it would nudge student-athletes to seek out legal counsel to give them advice on how to register trademarks for their names, nicknames, pictures, etc. After all, if a student-athlete endorses companies in various marketing campaigns, the value and popularity of their intellectual property will rise quickly. Thus, in order to prevent third parties from profiting from student-athletes’ intellectual property, it is necessary for players to register their own trademarks. This would serve a dual purpose as it would 1) protect the players’ intellectual property rights and assist them in profiting from their personal brands and 2) align with the NCAA’s bylaws, which requires student-athletes to be vigilant of unauthorized, third-party use of a student-athlete’s likeness.

Potential objections to the Olympic model are that 1) agents could seek to manipulate young athletes and 2) there may be an unequal distribution of compensation between “bench players” and star athletes. In regard to the first objection, the NCAA could, and should, act in an oversight role to assist student-athletes in their interactions with agents and companies. The second objection, in my opinion, is less of a concern because the culture of collegiate sports already illustrates that a player’s value is dependent on their “on-field” performance and personality.  A star player being compensated more than a backup player in endorsements is no different than that star player being drafted in the first round and the backup being drafted in the seventh round. Sports reward athletes for the quality of their performances, and that will not change anytime soon.

Although there may be minor drawbacks to the Olympic model, I believe they are substantially outweighed by its benefits. Most notably, allowing student-athletes to profit from their trademarks and endorsements would prompt more students to stay in college to attain their degrees. Additionally, it would deter student-athletes from attaining money in illegal ways during their collegiate careers. It is clear that a change must happen, and this may be the most efficient method.

––Joey Blake

 

 

 

 

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