A Shift in the Discussion Regarding the Payment of Student Athletes

(Source)

A major issue that has been debated is whether student athletes should be allowed to profit off the use of their names, images, and likenesses. There are several reasons given in support for both sides. Some rationales supporting the payment of student athletes include college athletes expenditure of time towards their sport—an average of 43.3 hours per week, college athletes struggle to make ends meet, paying students would only make the sport more competitive, the money earned from athletics is not automatically reinvested in education and research, the college sports apparel market capitalizes specifically on these players, payment would help athletes leave school with a degree and little debt, and the NCAA is an $11 billion industry which should be able to afford paying people on all levels, including the players..

Common arguments against the payment of student athletes encompass a lack of college athletic programs to  afford to pay athletes, elite college athletes receive athletic scholarships which serves as a form of compensation, there is no fair way to pay college athletes, students are not professionals, paying student athletes will cause cuts elsewhere, and paying college athletes will ruin college sports.

One of the major arguments used by the NCAA is the preservation of its amateurism model and the fact that the players are student-athletes. According to the NCAA, an amateur is a person that “does not have a written or verbal agreement with an agent, has not profited above his/her actual and necessary expenses or gained a competitive advantage in his/her sport.” There has been pushback and litigation against the NCAA and its resistance to pay student athletes. Ed O’Bannon v. NCAA was an antitrust lawsuit case in 2014 against the NCAA over the commercialized use of players’ names, images and likeness. In the lawsuit, U.S. District Judge Claudia Wilken shot down amateurism as an appropriate defense for the NCAA not to allow players to get paid for the use of their names, images and likeness. In her ruling, Judge Wilken wrote “[t]he association’s current rules demonstrate that, even today, the NCAA does not necessarily adhere to a single definition of amateurism.” Judge Wilken’s words reinforce the idea that that amateurism can be whatever the NCAA deems it to be at any particular moment—making it a tool to be used instead of a goal in and of itself. Furthermore, the use of the term “student athlete” is itself rooted in legal calculations and highly prevalent to the student-athlete payment debate. The term was created in the 1950s to help the NCAA fight against workers’ compensation insurance claims for injured football players, in order to offset the tendencies for state agencies to consider a grant in aid holder to be an employee.

California Gov. Gavin Newsom signed legislation SB 206 called the Fair Pay to Play Act, which allows college athletes in California the ability to profit off their name and likeness. The bill does not go into effect until 2023. Although SB 206 allows student athletes to profit, there are still some restrictions on how the student athlete can profit such as a provision that prohibits athletes from accepting deals that would conflict with a schools preexisting contracts. For example, if a player goes to a school sponsored by Nike, then he would be unable to sign a contract with a rival company such as Adidas. California was the first state to pass a law that would allow college athletes to get paid for endorsement deals and hire agents. Since then, there has been more states proposing legislation regarding the matter and there is even some traction for federal regulation. Politicians in New York, Illinois, Florida, and other states have also introduced bills that would allow college athletes to obtain endorsement deals. Also, U.S. Congressman Mark Walker (R-N.C.) has proposed a bill to change the federal tax code to force the NCAA to give all student athletes the right to sell their name, image and likeness.

With support from lawmakers, it is clear now that the debate is shifting from whether the student athletes should be paid to what the structure of payment would be in the use of their name, image, and likeness. Unable to counteract the outpour of political support for the payment of student athletes, the NCAA has eased its previously hostile position to the payment of student athletes. The NCAA’s top governing board recently voted unanimously to allow college athletes to be compensated. Each of the three NCAA divisions  have been tasked to create their own rules and detail the specifics no later than January 2021. They have provided some restrictions to the creation of the new rules including that student athletes must be treated similarly to non-athlete students, must not be treated like employees of their respective universities, and there should be a “clear distinction between college and professional opportunities.” While this is a good start, it is important to ensure the decision to allow players to profit from their name, image, and likeness is not changed, or postponed. As Congressman Walker has said “[w]e clearly have the NCAA’s attention. Now, we need to have their action,” and “[w]hile their words are promising, they have used words in the past to deny equity and basic constitutional rights for student-athletes.”

At the end of the day money matters. College sports and the NCAA has become a multibillion dollar industry with every level benefiting significantly except for the players. It’s time to even the proverbial playing field and allow the most important participants, the players, to actually have a say in what goes on in their collegiate careers. Although the logistics will be complex, there are several different approaches that can be taken. One approach is using the Olympic model. The Olympics’ international definition of amateurism permits the athletes access to the commercial free market. Another avenue is to establish a  uniform set of laws on the federal level so there is no confusion between the different divisions and sports. Another possibility would be to enable the divisions themselves to make the regulations as they would be in the best position to oversee its enforcement. Overall, there are many different possible solutions to this question, which will be discussed and debated heavily, leading to the creation of the new regulations.

About the author: Ayomikun Loye is J.D. candidate for the Class of 2020 at Cornell Law School. He earned his B.A. in Political Science and B.S. in Legal Studies from the University of Central Florida in 2017. In Ayomikun’s spare time, he enjoys playing basketball, tennis, and reading.

Suggested citation: Ayomikun Loye, A Shift in the Discussion Regarding the Payment of Student Athletes, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Apr. 7, 2020), https://live-journal-of-law-and-public-policy.pantheonsite.io/a-shift-in-the-discussion-regarding-the-payment-of-student-athletes.