“Many observers believe this invasion of commercialism appears to be inevitable given new technologies that are intersecting with consumer demand for interactivity and reality-based gaming. If college athletes’ names and likenesses are to be used in commercial products, advertisements or fantasy sports games, there must be a way to balance the inequities by providing some sort of benefit to athletes through mechanisms other than ‘pay for play.'”
~ Len Elmore – Knight Commission Member
The State of the Association address presented at the 2009 NCAA Convention highlighted the challenges of conducting commercial activity in the context of college sports, an issue that has existed as long as college athletics competition itself. According to NCAA Senior Advisor Wallace I. Renfro, who presented the address on behalf of NCAA President Myles Brand, the current debate shifts attention away from the institutional decisions universities make about the appropriate balance of commercial activity with the presentation of their contests and facilities to the complex question of how to regulate the increasing commercial use of athletes’ names, images and likenesses
The Knight Commission’s Oct. 2008 meeting examined many of the issues discussed in the address. At that meeting, R. Gerald Turner, Knight Commission co-chairman and Southern Methodist University president, pointed out that “college athletes in fantasy games and video games may seem trivial to some, but these and other forms of new media pose new challenges to the long-held distinction between commercial activity featuring teams and that which focuses on individual athletes.” He continued that the Knight Commission continues “to believe that universities need to treat athletes fairly and equitably, and for third parties to use them in commercial products and advertisements violates that principle.”
President Brand’s paper on commercial activity, presented as a companion piece to the State of the Association address, outlined two key principles that govern commercial activity in intercollegiate athletes:
- Student-athletes are not to be exploited in commercial activity;
- All commercial activity in intercollegiate athletics undertaken by universities and colleges, conferences and the NCAA national office must be consistent with the values and mission of higher education.
Brand also said that “when we say ‘student-athlete exploitation in commercial activity,’ we should have a specific definition in mind. Student-athletes are amateurs, not paid professionals. That implies that they cannot accept payment for endorsing or advertising any commercial product or service. It also means they should not be put in a position in which the natural interpretation by a reasonable person is that they are endorsing or advertising a commercial product or service.”
The difficult task that remains is agreement on what activity defines exploitation. The NCAA national office, conferences and institutions share responsibilities to make good judgments about the commercial activity that is consistent with these principles, Brand said. He also proposed a system where the NCAA staff would be the appropriate body to determine whether student-athlete exploitation has occurred in conjunction with commercial activity. In this system, university administrators and faculty would comprise an oversight committee to hear appeals and guide the staff decisions. This proposed system as well as the guiding principles that have been defined by a presidential task force on commercial activity (link here) will be considered by the NCAA’s new Leadership Advisory Group.
Malcolm Moran, the Knight Chair in Sports Journalism in the College of Communications at Penn State, recently wrote a commentary published in the winter issue of the NCAA Champion magazine that offered a different tactic. The piece is titled “Not just another number: While others cash in, athletes are more than the shirts on their backs.” Moran states that if “Fantasy Leagues and video games are going to extend the use of (athletes’) images”… then they “deserve a more reasonable slice of the pie.” Moran suggests that athletes should have their full cost of attendance covered in exchange for greater commercial use of their names and images in products other than game broadcasts.
Moran’s position is similar to the one taken at the Knight Commission’s Oct. 2008 meeting by Knight Commission member Len Elmore. Elmore, who is a partner at the law firm of Dreier LLP and also works as a college basketball analyst for ESPN, stated that “many observers believe this invasion of commercialism appears to be inevitable given new technologies that are intersecting with consumer demand for interactivity and reality-based gaming. If college athletes’ names and likenesses are to be used in commercial products, advertisements or fantasy sports games, there must be a way to balance the inequities by providing some sort of benefit to athletes through mechanisms other than ‘pay for play.'”
This debate about the most appropriate manner to operationalize the principles will continue and it’s a debate that should involve athletes, particularly the athletes who are driving the market demand for greater commercial use of their names and images.