Profiting Off Name and Likeness

WASHINGTON -- The Knight Commission on Intercollegiate Athletics has often been something of a leading indicator of change in college sports, as many of the panel's members have historically overlapped with the presidents who drive decision making in the National Collegiate Athletic Association. So it was notable Tuesday when the Knight panel, which has uniformly opposed paying college athletes, signaled that it might be open to supporting rule changes that would allow players to profit off their own name, image and likeness.

The commission devoted more than an hour to the topic during a forum here on Tuesday, saying in a statement prior to the meeting that while the "commission did not endorse any specific proposal, members agreed that the time has come for NCAA leadership to develop oversight, legal and financial reforms" related to the commercial use of athletes' names and images.

At the center of the panel's discussion on Tuesday was a detailed proposal presented by Gabe Feldman, director of Tulane University’s Sports Law Program. Building off similar proposals by the National College Players Association and the Drake Group -- as well as ongoing antitrust lawsuits against the NCAA -- Feldman argued that the association should eliminate the current rules barring athletes from profiting off their names, images and likenesses and replace them with new rules that would allow players to secure endorsement deals and other forms of compensation.'

Under the proposed rules, the athletes could receive payment for their autographs and for appearing on television and radio shows. They could enter into group licensing agreements for video games and jersey sales, and they would be allowed to hire agents to help with evaluating and negotiating offers.The money earned from such agreements would be kept in a trust fund until the player graduates. 

The rule change would only apply to nongame name, image and likeness rights, Feldman explained in a white paper he presented during the forum. It would not include game-related uses of players' names and images, including game broadcasts and rebroadcasts. Feldman also suggested stipulations such as only allowing players to receive the benefits if they are in good academic standing.

“Education and name, image and likeness payments are not mutually exclusive,” Feldman wrote. “Any increase in ‘commercialization’ that will arise with name, image and likeness agreements need not undermine the educational values and overall mission of the NCAA. Commercialization and education can co-exist.”

William E. Kirwan, former chancellor of the University System of Maryland and the Knight Commission’s chairman, said that it’s “too early to say there’s been an evolution in the commission’s thinking” about paying athletes, but that Feldman’s proposal was “quite thought provoking” and that it was something the commission will continue to explore.

Some have already begun doing that work. Lon Kruger, head men’s basketball coach at the University of Oklahoma and a panelist at the meeting on Tuesday, said he recently talked to local business owners about the idea of loosening name, image and likeness rules.

“I asked them, ‘If legal, how many of our athletes would you invest $1,000 in for an hour of their time?’” Kruger said. “'We have 600 student-athletes at a time when a lot of good things are happening at the University of Oklahoma. We have lot of very recognizable athletes in a college town. What would be a good business decision? How many athletes would you invest in?’ And the answer on the low end was six, and the high end was 10.”

That survey of local boosters was not scientific, Kruger noted, but it prompted Knight Commission members to ask Feldman if he knew how many college athletes, nationally, would benefit from his proposal. The research, Feldman said, is unclear, because, as NCAA rules have “eliminated the market,” there is not currently a market to study.

Some researchers estimate that thousands of athletes could benefit from NCAA rules allowing them to be compensated for name, image and likeness rights, he said, but other research suggests that only about 50 college athletes per year have enough name recognition to profit off their likeness in any meaningful way. There are more than 500,000 college athletes in the United States.

The uncertainty around how large a market there would be should not dissuade the NCAA and its members from loosening the rules, however, Feldman argued, or the commission from recommending the change to the NCAA.

“I think if it only affects 50, then it minimizes a lot of the concerns,” he said. “Because I think part of the concern is that this is going to shift the recruiting balance, and that local car dealers in Alabama are all going to offer free cars to the entire football team and that’s going to drive all of them to Alabama. But if there’s going to be only 50, we’re not going to have that concern. If it is affecting all [of the players], then we just need to make sure they are legitimate transactions.”

That would require a new compliance and enforcement system similar to that of the National Basketball Association, which could prove challenging for the NCAA, said Joel Litvin, a former NBA executive. The proposal has the support of college athletes, however, said Rollins Stallworth, a former Stanford University football player and chair of the Pac-12 Conference’s Student-Athlete Advisory Committee.

“The question is not should we be paid for non-game-related [name, image and likeness], but how,” Stallworth said.

At the NCAA’s annual meeting in January, the Pac-12 Conference tabled a proposal that would have created a new rule allowing athletes to use their name and likeness to promote nonathletic businesses, such as a dog-walking service or a music career. Facing pressure from other conferences, the Pac-12 also later tabled legislation aimed at reducing time demands for athletes. The decision left many college athletes frustrated at the NCAA’s lack of action.

During Tuesday’s meeting, Arne Duncan, the former U.S. secretary of education and a new member of the Knight Commission, said the NCAA often operates at too slow a pace when working to address concerns of athletes.

Recalling the antiracism protests at the University of Missouri last year -- in which several members of the football team threatened to boycott practices and games unless the university’s chancellor resigned -- Duncan asked if college players would consider organizing similar boycotts over athletics issues like NIL rights.

Stallworth revealed that two of Stanford’s team captains boycotted football-related activities last year during summer workouts. For the third summer in a row, he said, the university was late in providing players with scholarship money for participating in the camps. The protest was not nearly as dramatic as the strike at Missouri, Stallworth said, but “seeing the effect of two of our teammates doing that and what goes on in the locker room, the discussion that happens, you can see the potential that could happen.”

At a news conference following Tuesday’s meeting, the Knight Commission issued a formal recommendation to the NCAA, urging them to better address athletes’ education and health concerns. The commission recommended that 100 percent of the revenue received through the association's lucrative March Madness basketball tournament be restricted to supporting athletes. The money could be used for improving concussion prevention or hiring more academic counselors, for example, but not for building new facilities or increasing coaches' salaries.

Currently, the NCAA directs about 25 percent -- or $120 million -- of that revenue to supporting athletes. It earns about $500 million from the tournament. The commission urged the NCAA to make the change as soon as possible.

“We have to act, not talk, with a fierce sense of urgency,” Duncan said.