NCAA Votes to Allow College Athletes to Benefit From Use of Name, Image, & Likeness

New Rules will Allow College Athletes to Benefit From Use of Name, Image, & Likeness

On October 29, 2019, the NCAA Board of Governors voted unanimously to allow college athletes to benefit from their schools and third parties using their names, images, and likeness “in a manner consistent with the collegiate model.” This move was in response to bills in California, South Carolina and other states that would prohibit colleges from taking away scholarships or dismissing athletes for signing endorsement deals or hiring agents, which would give schools in those states a competitive advantage in recruiting compared to schools in other states. While the specific details are unclear at this point, each of the NCAA’s three divisions are to create regulations in support of this new NCAA policy by January 2021.

What is also unclear is whether college athletes will be considered employees entitled to protection under federal and state labor and employment laws despite the fact that it is unlikely this policy would result in college athletes receiving a paycheck as an employee would, as endorsement deals and payments for use of an athlete’s name, image and likeness are more in the realm of contract law than an employer-employee relationship.

There are various implications if college athletes are considered employees, such as whether playing time is motivated by a coach’s animus towards a protected class, specifically race, national origin, religion, and/or actual and perceived sexual orientation. Despite having these benefits, would college athletes unionize as they attempted to do at Northwestern University several years ago, but now have protection under the National Labor Relations Act if they are retaliated against by their school for doing so? Additionally, what if a marginal bench player’s use of their name, image and likeness from a future NCAA Football video game is so minimal in terms of residual income that it falls below the FLSA’s minimum wage? While these scenarios are admittedly unlikely, Senator Richard Burr (R-North Carolina) is proposing to have athletic scholarship treated like income for tax purposes if this new rule goes into effect, making this scenario of college athletes being considered employees under the law a possible reality.

However, there is another point to consider on how this NCAA policy would eventually be implemented. According to the Los Angeles Times, Clemson University Football Coach Dabo Swinney, while he opposes paying players while attending school, says he supports “modernizing the scholarship,” which would include a full stipend covering the full cost of attendance, including room and board, paying for parents to travel to games, and having money go into an annuity that the player would receive only if he or she graduated. This way, there could be no argument that any benefit received from endorsement deals or use of an athlete’s name, image or likeness would constitute pay received by an employee, as the athlete would only receive this benefit at graduation.

If you feel that you are being discriminated or retaliated against at work, or not receiving minimum wage or overtime compensation, please contact Borrelli & Associates, P.L.L.C. immediately to schedule a consultation.