By Dillon Mahoney
Slated to begin June 9th is a contest that will prove historic for collegiate athletics, and it will happen far away from the playing field. Former UCLA Bruins basketball star Ed O’Bannon will be switching courts as he files an antitrust lawsuit against the NCAA over its use of his and other athletes’ likenesses for licensing and merchandising purposes. The case specifically revolves around the NCAA’s agreement with EA Sports that grants the video game company the image rights of its current and former student athletes. O’Bannon argues that NCAA regulations violate the Sherman Antitrust Act by illegally fixing the cost of its players’ image rights and many legal experts believe his argument has merit. A verdict in O’Bannon’s favor would likely force the NCAA to pay a substantial restitution and penalty to former athletes but this victory could have little effect on the state of current players.
Unless the court orders the NCAA to also undergo a serious overhaul of its operations, a power which it has under The Sherman Act, this same illegal exploitation of college athletes will continue unabated under the guise of a phony amateurism. The facts show that college athletics is a professional industry; the question is one of who should enjoy its profits. With the aim of protecting players, amateurism rules merely allow the NCAA to exploit its athletes to a greater degree.
Find the nearest varsity athlete and ask them if they know what a 08-3a form is; they will likely have no idea. It’s one of a parade of waivers that college athletes must sign in order to compete in intercollegiate athletics and is central to O’Bannon’s complaint. The 08-3a is the form which grants the NCAA the right to use a players image to “promote NCAA championships or other NCAA events, activities or programs” in perpetuity. It is this ‘permission’ that the NCAA uses when it signs licensing agreements with EA for video games and with television companies for broadcast rights. However, college athletes do not have a choice to not sign these documents and often do not understand the complete ramifications of their signing. Combined with the NCAA’s strict rules regarding its players’ amateur status, this waiver has provided the organization and its member schools a powerful tool for profiting from its athletes.
While the NCAA and its member institutions have earned billions from licensing athletes’ image rights, NCAA rules prohibit its star players from earning any money from their collegiate likeness. The NCAA argues that their actions ‘preserve amateur athletics,’ but making money to preserve amateur athletics is an irony too great to properly address in this article. Those with eyes for justice must see that college sports are a professionalized industry in which the productive are being exploited. To illustrate, consider the last time you took in a major college-sporting event; was it different from your experience with professional sports? The players are wearing Nike uniforms (a paid plug from the company), timeouts come with commercial breaks (more paid plugs), and the stadiums are filled with paying fans. These are the hallmarks of professionalized sports and they generate massive revenues for universities and the NCAA, while those who drive this revenue receive a pittance in return.
The NCAA and its defenders seem to believe that star athletes are compensated fairly by their scholarships, but their argument does not hold weight when one considers the way in which the NCAA capitalizes on its athletes. For example, take EA’s popular line of NCAA sports games, the impetus of O’Bannon’s lawsuit. Star players appear on the cover and earn key placement within the game; their characters are even rendered more accurately to likeness than their lesser-known counterparts, whose finer features are randomly generated. That’s because fans purchased NCAA Football 2014 to run around with star athletes like Michigan speedster Denard Robinson (the game’s cover athlete) not to block with his linemen. While the NCAA sells its products relying heavily on the images of certain star athletes, these stars are only “compensated” as well as their peers who do not create this revenue.
There are a host of athletes who are denied otherwise legal opportunities to capitalize on their image and likeness and are instead required to sign over these rights to the NCAA. While introducing a new system of compensation in collegiate sports would bring with it a host of new difficulties, these do not negate the injustice underlying the current system. Professional sports underwent growing pains when players demanded a greater share of skyrocketing media revenues but the result was a more equitable division of revenues that awards players their just deserts. If the NCAA were actually interested in maintaining the integrity of amateur sports, pure and untainted by money, would they have signed a $10.8 billion deal with CBS for March Madness broadcast rights? NCAA ‘amateurism’ is an antiquated system that far predates modern sports media and it is one that would be best left in the past.
This article originally appeared in the Summer 2014 edition of PPR.
Image (Attribution License) courtesy of Will Thomas on Flickr.