NCAA Governance
NCAA athletes should be paid to protect these student-athletes from being exploited by the universities to profit from commercial enterprises. The present set-up of NCAA is that it has three divisions namely, Division I, Division II, and Division III. Under NCAA rules, Division I and Division II universities and schools are allowed to offer scholarships to the student-athletes for playing a sport. For Division III, the universities or schools are prohibited to offer any athletic scholarships to the student-athletes under this category.
Currently, the NCAA has prohibited the student-athletes to receive payment in whatever form for their athletic skills for the sports they play and are not allowed to accept any promises of future after they graduate. However, the NCAA allows the use of the likenesses and images of student-athletes for a limited time (Holthaus 369). NCAA permits the NCAA member universities to sell all merchandise showing the names, likenesses, or pictures of the student-athletes. At the same time, the NCAA-member universities had allowed the use of the names, pictures and appearances of their student-athletes for charitable/educational activities, but do not include any commercial activity of non-profit agencies.
Based on the present class suit that had been filed by former and current Division I men’s football and basketball players against the NCAA, EA Sports, and CLC, the arguments of the players are meritorious in the sense that there is substantial profit involved when player’s likeness is used on video games and equivalent merchandise. This is a clear violation of antitrust laws and the right of publicity claims. It is unfair for NCAA to allow the images of past and current student-athletes to sell DVDs of classic games, video clips, photos, sports apparel and video game sales that were sold to corporate advertisers and rebroadcasts of classic games. In effect, NCAA and CLC became business partners but did give the student-athletes a share of the profit for the use and sale of their image and likeness. Under Section 1 of the Sherman Act, it was clearly stated that “Every contract in the form of trust, conspiracy, or a combination of both that is intended to restrain trade or commerce should be declared illegal”. The commercial contracts are clearly covered under said provision. In effect, there is unjust enrichment on the part of NCAA for receiving royalties for the licensing practices. The licensing income received by NCAA and its business partners had been used for their own benefit. Thus, the present and future licensing contracts entered by NCAA allowing the use of the images of former student-athletes should be declared void and unenforceable.
At present, the NCAA and BCS earn millions of dollars for contracts it entered with ESPN and other similar companies. BCS makes money by entering contracts with ESPN for the live broadcast of the games. Such act on the part of NCAA and BCS shows that there was unjust enrichment on their part.
The institutional athletics finances earn enough income and become self-sufficient in the sense that these major-college athletics departments are receiving subsidies in the form of student fees and school or state support. Thus, they have enough money to cover their own expenses that is about time for the student-athletes to be paid aside from the scholarships that were offered to them.
The NCAA has a duty to abide by the notions of justice and civic responsibility in promoting the over-all well-being of the student-athletes and the intercollegiate athletics as a whole. Thus, it should not solely enjoy the profits made for the use of the likeness and identities of the players to promote products to the public. In fact, the use of the names of the student-athletes and their playing records amounts to a violation of their publicity rights they were used without the consent of the players in order to obtain commercial advantage for NCAA and its business partners.
Thus, the sale of any merchandise featuring the images of the student-athletes using their character and persona violate the publicity rights of the athletes. These actions of NCAA are considered as violation of the antitrust law that may bear a strong impact on intercollegiate athletics community as a whole. NCAA benefited from the marketability of the photos showing the student-athletes use the popularity, character, personality, and reputation of the student-players and shows intent to gain a commercial benefit on the part of NCAA. NCAA rules which prohibit men’s college basketball and football players to have commercial rights to their names and likenesses constitutes unreasonably restrain trade in the market for athletic opportunities of the student-athletes. While it is true that the $5,000 yearly stipend is enough to provide a college athlete to shoulder expenses for food, shelter and occasional recreation, such amount is inadequate compared to the income gained by NCAA and its business partners. The NCAA should promote the rights of student-athletes and should not use them for any commercial gain. Thus, any license contract that will require the uses of the names, images, or likenesses of these student-athletes may be entered by NCAA provided that the consent of the students was obtained.
Works Cited:
Holthaus, William Jr. & ED O’Bannon V. “NCAA: Do Former NCAA Athletes Have
a Case Against the NCAA for its Use of their Likenesses?” St. Louis University Law Journal 15 (2010): 369-371. Print.
