Sean Cunningham is a J.D. candidate, 2021 at NYU School of Law.
In September, after securing a unanimous vote in California’s senate, Senate Bill 206 was signed into law by the state’s governor. As a result of the legislation, athletes who attend California colleges can now earn money for their name, image, and likeness; meanwhile, as a result of an extraneous policy shift that quickly followed the California enactment, the same right applies to all college athletes across the nation, regardless of the state in which they are enrolled.
Prior to California’s legislative enactment, the National Collegiate Athletic Association (NCAA) had maintained that college athletes gain so much from their college experience and academic scholarships that the introduction of payments would pervert the incentive structure that, as the argument goes, has been essential for preserving the distinction between collegiate and professional athletic leagues. Given its long-held stance on the matter, the NCAA’s opposition to Senate Bill 206 – which the NCCA claimed “would erase the critical distinction between college and professional athletics” – was unsurprising.
In contrast to the NCAA’s initial expressions of opposition, the NCAA’s recently announced decision to soften its stance came as quite a shock: just one week prior to the 2019-‘20 season, the organization conceded that college athletes should have the right to earn profits from their name, image, and likeness. Following the about-face announcement, the NCAA’s president, Mark Emmert, stated the following: “There’s no question the legislative efforts in Congress and various states has been a catalyst to change. It’s clear that schools and the presidents are listening and have heard loud and clear that everyone agrees this is an area that needs to be addressed.”
Despite the NCAA’s announced policy shift and Emmert’s subsequent remarks, many are skeptical of the NCAA’s true intentions, since the fine print of the NCAA’s announcement included that the athletes can earn money from their name, image, and likeness as long as it is “consistent with the collegiate model” and provided that players cannot earn such money in certain contexts, since the NCAA plans on “prohibit[ing] inducements [for student-athletes] to select, remain at, or transfer to a specific institution.” Wariness related to these caveats is easily warranted, since any sponsorship money taken from a local business could be interpreted as an inducement to remain at the school. While the NCAA has taken a step in the right direction, it seems that its intentions still do not quite align with lawmakers, and consequently, lawmakers across the country have continued efforts to pass legislation along the lines of the California enactment.
Before the NCAA’s About-Face:
From a legal perspective, the issue of college athletes’ earning potential has been coming to a head since O’Bannon v. NCAA. In the landmark appellate decision that followed, the Ninth Circuit held that athletes who were depicted by the NCAA’s video games had a right to their own image and likeness, and ostensibly due to the ruling, the NCAA and EA Sports no longer produce annual editions of their immensely popular video game. The game did not use the names of student athletes (and neither do college teams in real life) and instead featured nameless players with jersey numbers and physical traits that mirrored those of the current college rosters. Just like the Duke college bookstore could sell, and profit from, a “Duke #1” basketball jersey with no name on the back at the same time that Zion Williamson wore that number for the school, the NCAA could previously profit in a similar manner in the context of video games.
The NCAA’s first response to the California bill almost came off as a threat. It maintained that the new law would negatively impact California student athletes because the NCAA needs to maintain fairness nationwide, implying that California students would be barred from competing in the events from which they could now reap profits. The NCAA’s stance rapidly lost its persuasive weight, however, because other states have already begun planning similar legislation, including Colorado, Florida, Illinois, Kentucky, Minnesota, Nevada, New York, Pennsylvania, South Carolina and Washington. While equivalent legislation might not pass in every state, the fact that the California act passed with a bipartisan, unanimous vote both demonstrates how popular it is to side with student athletes and provides solid grounds to expect that legal changes will likely follow in other jurisdictions.
Even though the NCAA is ostensibly more
open to college athletes being compensated for their earning potential, one
ought to expect legal challenges as long as the NCAA tries to limit what rights
to profits from name, image and likeness truly means for student athletes.
 See, e.g., Gary Parrish, NCAA Faces Near-Impossible Task Granting Athletes Rights to Name, Image and Likeness Profits, CBS Sports (Oct. 29, 2019), https://www.cbssports.com/college-basketball/news/ncaa-faces-near-impossible-task-granting-athletes-rights-to-name-image-and-likeness-profits/.
 O’Bannon v. NCAA, 7 F. Supp. 3d 955, 963 (N.D. Cal. 2014).
 See generally O’Bannon v. NCAA, 802 F.3d 1049, 1055 (9th Cir. 2015) (“The friend’s son turned on the video game, and O’Bannon saw an avatar of himself—a virtual player who visually resembled O’Bannon, played for UCLA, and wore O’Bannon’s jersey number, 31. O’Bannon had never consented to the use of his likeness in the video game, and he had not been compensated for it.”).