NCAA Reverses Course and Agrees to Let Student Athletes Commercialize their Identity

In a change that started with a dispute over EA Sports collegiate video games, the NCAA Board of Governors yesterday voted unanimously “to permit students participating in athletics the opportunity to benefit from the use of their name, image and likeness.” There is a caveat in the new policy that the exploitation by the athletes of their identity must be done “in a manner consistent with the collegiate model.”

The change in policy is the result of a one-two punch that came as a result of the Ninth Circuit Court of Appeals decisions on student athlete’s right to control their name and likeness and the California legislative process that set to mandate this outcome by statute, effective January 1, 2023. Under intense pressure from lawmakers, the public, and the courts over the vast financial benefits adhering to the colleges and the NCAA, the organization had lost most public support about excluding student athletes from a portion of this income. The Ed O’Bannon book, Court Justice, provides a helpful history.

The policy is just a first step in the process to assure a new model of athlete compensation governance. The Board of Governors policy sets out some key principles:

Specifically, the board said modernization should occur within the following principles and guidelines: 

  • Assure student-athletes are treated similarly to non-athlete students unless a compelling reason exists to differentiate.
  • Maintain the priorities of education and the collegiate experience to provide opportunities for student-athlete success.
  • Ensure rules are transparent, focused and enforceable and facilitate fair and balanced competition.
  • Make clear the distinction between collegiate and professional opportunities.
  • Make clear that compensation for athletics performance or participation is impermissible.
  • Reaffirm that student-athletes are students first and not employees of the university.
  • Enhance principles of diversity, inclusion and gender equity.
  • Protect the recruiting environment and prohibit inducements to select, remain at, or transfer to a specific institution.

As the actual rules develop, some of these principles will be more challenging to police than others. Hidden booster payments and other efforts to steer recruitment have long plagued Division 1 athletics. The ability to directly compensate athletes will add some transparency, but it will also open new doors for abuse.

Still, the change is an essential step in providing an economically sound and respectful environment for student athletes, and it reflects a marketplace where star athletes often develop high economic value in their identities well before they leave their universities. It may be wishful thinking to hope that if a student athlete is fairly compensated for his or her identity before leaving college, the athlete might stay longer at school rather than opting to leave for a professional career.