Pay the Players… For Their IP

Zachary M. Broner is a J.D. candidate, 2021 at NYU School of Law.

Should a student-athlete have a right to their own name, image, and likeness? For decades, the National Collegiate Athletic Association (NCAA) has said no. The NCAA, as a champion of “amateur athletics,” has maintained a framework that prevents student-athletes from earning any income in their capacity as a student-athlete outside of their scholarship. The result has been controversial, as big-name athletic programs continue to bring an absurd amount of revenue on the backs of their players, while the players are unable to see any piece of the pie aside from an athletic scholarship.

While there are endless layers to the discussion of amateurism, the heart of the “pay the players” argument is fundamentally an intellectual property issue. If student-athletes can show an either fundamental or legally protected right to commercialize their own name, image, and likeness, the NCAA’s entire model of amateurism would be thrown to the curb. For years, the NCAA has been able to uphold its amateurism model in courts, vigorously defending itself against any “pay the players” argument due to floodgate concerns. And, while the NCAA has formed a “working group” to examine any potential modifications to its policy on forbidding student-athletes the right to commercialize their own likeness, they do not seem willing to entertain any sort of payment. Again, the floodgates. Enter California.

Governor Gavin Newsom has signed into law a first-of-its-kind bill that would allow student-athletes to earn compensation from using their name, image, and likeness. While not mandating any payment to students from the NCAA, its member conferences, or the universities, the “Fair Pay to Play Act” would prohibit those organizations from stopping athletes of going out and finding compensation on their own. The bill, which has been supported by the likes of Bernie Sanders and LeBron James (the bill was signed by Newsom on James’ HBO show “The Shop”), will provide student-athletes with a pathway to earn significant income during their time as a student-athlete. Similar bills, in the aftermath of California’s legislation, have been introduced in New York and South Carolina.

The recent legislative moves made by various states have put significant pressure on the floodgates, and now things are changing. The NCAA has, in a stunning decision, officially recognized these moves and has “voted unanimously to permit students participating in athletics” to receive economic benefit from their name, image, and likeness. The NCAA board of governors established a working group to consider best possible practices for implementation of this new philosophy throughout its bylaws and policies. One way or another, it seems that student-athletes will find a way to get a little bit more of the pie. Allowing student-athletes to commercialize their own personal intellectual property without having to go through their University and the NCAA is a win for all sides in a players-getting-paid universe. Not only does this create zero additional administrative burden or mandatory payment from the powers that be, but it also allows solves the problem of which athletes should be paid and how much.

However, it remains to be seen just how serious the NCAA is about allowing this transformative economic reality to come to bear. Is the “working group” really concerned with how to effectively implement the new policy? Or is it just an opportunity for the NCAA to buy time to figure out how to rig the system, once again, to keep its own hand in the pie? I side more with the latter, as the NCAA has earned no benefit of the doubt throughout its history. A free market is the only way this should go, but the visible hand of the NCAA will not be quick to relinquish a sense of control.

The Fair Pay to Play Act and associated NCAA bylaw amendments, if enforced, will hopefully create an effectively free market for the name, image, and likeness—intellectual property—of student-athletes. One of the biggest questions that had always clouded this debate was the classic example of “should the quarterback of the football team and the backup’s backup on the swimming team be paid the same amount? How do you decide how much to pay each person?” Creating a free market, where athletes can market their own likeness to the highest bidders, is far and away the fairest solution to the equitability issue. How much you should be paid for your name, image, and likeness would become how much you can earn for it in a free market. This would render student-athletes just like any other participant in the free market. A physics student with a great robotics product will get paid more for that product than a student with an average robotics product would, without the underlying emotional claim that they should all be paid the same. In an at least somewhat efficient free market, players will be able to earn in commercializing their intellectual property for what they bring in for their university.

Allowing players to profit off themselves – their name, image, and likeness—is fair… both because it allows student-athletes to earn a chunk of the pie that they are producing and it creates a fair market where the most deserving intellectual property is rewarded. While revolutionary state legislation and the NCAA’s subsequent decision to finally allow players to benefit from their own IP, there is always the chance that the NCAA comes back in and tries to strongly restrict this new freedom for athletes. A free market for players is where we should be heading, but only time will tell if the NCAA will allow us to get there.

For more about this topic, check out the article in JIPEL’s most recent issue.