With its walls coming down on all sides, with California having passed the Fair Pay to Play Act and numerous other states on the verge of passing copycat bills, the NCAA has finally done what its detractors have been demanding that it do: allow players to profit off their name, image, and likeness. Sort of.
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.
This, actually, is reasonable, at least if your goal was to allow college athletes to profit off their name, image, and likeness. Unless this was never about name, image, and likeness. Take it away, guy who wrote about college football bagmen:
Also I have a growing fear that likeness rights will be co-opted by the @NCAA and then used as a bulwark against actual compensation of revenue generating athletes.— Steven Godfrey (@38Godfrey) October 29, 2019
Major news organizations that should know better are acting like the NCAA took a major step today.— Chris Korman (@ChrisKorman) October 29, 2019
It did not. It did what the NCAA always does, which is obfuscate and delay.
Here’s @aNateScott https://t.co/Pn0V2gbVtH
Today’s NCAA announcement “contains zero specifics, an almost infinite number of potential restrictions, and doesn’t actually say anything about money.” So, uh, don’t be fooled (via Sally Jenkins) https://t.co/sdcZhmhXPD— Dan Steinberg (@dcsportsbog) October 29, 2019
The NCAA's goal seems to be to allow athletes to get paid without that payment being tied to "athletic performance" or recruiting. Which, frankly, will be impossible. https://t.co/HfIDVPRPtt https://t.co/ZKeXKFkHb7— Rob Dauster (@RobDauster) October 29, 2019
Huh, weird that the crowd that’s been pushing for name, image, and likeness rights would be mad about this. Except that “name, image, and likeness” is not and has never been what this is about.
A little background is in order here. There has been a debate about whether or not college athletes should be compensated for basically as long as there’s been an NCAA. The reason that amateurism has always been the rule is complicated, but the main reasons are twofold. One, colleges and universities are considered to be non-profit educational institutions, and thus not taxable by the IRS, so long as everything they do is considered a legitimate extension of their educational mission. Fielding a football team as an extracurricular activity for students at the university is okay; fielding a professional team is not. (This also explains why the athletes have to also be students at the university, by the way.) The other, more recent, development is Title IX, which from most interpretations of the law would essentially require compensation to be equal between the genders. That would mean that if you wanted to pay the football players an amount above tuition, room, and board, you’d have to do the same for your women’s soccer team.
These two realities (along with a whole bunch of other things, like workmen’s comp) meant that universities paying players directly was never going to happen. Allowing players to profit off their “name, image, and likeness” — also known as “the Olympic model” — was devised as a clever workaround. In the most blunt terms possible, allowing athletes to profit off their “name, image, and likeness” meant essentially crowdfunding payments to athletes, thus removing the university from any legal responsibility for the fact that 95 percent of the compensation would be going to male athletes (and specifically football and men’s basketball) and, at least in theory, allowing the universities to keep up the required legal fiction that these are actually just extracurricular activities for students and not, at least at the highest levels of Division I, de facto semiprofessional sports teams.
(Speaking of clever workarounds, occasionally you’ll see some of the same crowd proposing that universities allow football players to major in football instead of bothering to create the facade of jock majors. That one’s even more of a nonstarter.)
So here’s what happened yesterday: the NCAA said, in so many words, don’t come at us with this bullshit. The NCAA told the crowd that they are fine with allowing players to profit off their name, image, and likeness, in the most literal terms possible, but not allowing college athletes to profit off their ability to play a sport. The “name, image, and likeness” crowd has responded by saying that this was about allowing college athletes to profit off their ability to play a sport all along.
Because, of course, if you really wanted college athletes to profit off their name, image, and likeness, you were fine with what the NCAA said yesterday.
Except that “name, image, and likeness” can’t be separated from a college athlete’s ability to play a sport. I know it, you know it, the NCAA certainly knows it, and anybody pushing for college athletes to be allowed to profit off their “name, image, and likeness” knows it. When a Knoxville car dealership plasters the image of the starting quarterback at the University of Tennessee on a billboard encouraging you to buy a car, and compensates the quarterback for it, is he being compensated for his image or for his status as the starting quarterback at the University of Tennessee?
Don’t answer that. You can’t separate the two.
Except that, and here’s the real rub, said quarterback’s image probably has zero value to the dealership absent his status as the quarterback for the University of Tennessee. Does his image have any value if he’s the starting quarterback at Carson-Newman, even assuming we somehow keep his ability to play football the same? Is he even profiting off his own ability to play football or simply profiting off the university he plays for?
By coming out in favor of name, image, and likeness rights, but in such a limited manner, the NCAA has told the crowd that if they really wanted college athletes to be compensated for their ability to play a sport, they should have said so from the beginning.
In the meantime, let’s have the debate about whether allowing the same shoe companies and bagmen that are currently compensating players under the table to go legitimate. Because that’s what this is about and what it’s always been about. Not “name, image, and likeness” rights.