The question seemed so simple: can you write about the NCAA’s stance on right of publicity, taking into account both ethics and law?
How much easier can this get? With the Ed O’Bannon case making its way through the courts and with EA Sports and Collegiate Licensing Company reaching agreement in their portion of the Sam Keller case, this job looked almost too easy. The law favors the athletes when it comes to right of publicity. But the ethics?
How can the NCAA seriously make the case that Johnny Manziel has no right to sell his autograph, but it’s perfectly OK for Texas A&M to sell $20,000 dollar tickets to an athletic dinner, with the promise that those attending will be able to meet Manziel?
How can the NCAA claim that the jerseys it sells promote the team, when a consumer can type in a player’s name and be sent to a site that promotes their number?
The hypocrisy evident in the NCAA is actually embarrassing for the institution. How can they claim to be ethical in their approach?
But it’s not that simple.
Too many ways to look at this issue exist. The first may be the most simple: student fees. Is it OK for Universities to charge student fees to help fund an athletic program and then to pay student athletes?
Currently, 351 schools will be termed NCAA Division I schools next year. Only 22 made a profit last year. Still, many of these schools made between $4 -12 million in branding, much of which came from the sale of merchandise that is directly related to the athletes who wear the jerseys and other merchandise.
Why shouldn’t the players get part of the cut?
This argument comes down to the idea of amateurism and professionalism. The NCAA claims its athletes are amateurs and uses its own model of amateurism as the basis, the NCAA model. What does the NCAA model of amateurism mean?
Whatever the NCAA says it means.
Seriously, that was the answer given by sports economists Andrew Zimbalist and Allen Sack in a report given to the Drake Group executive board. (Read their report here).
The NCAA wants its athletes to sign away any ability to make money while in school and also doesn’t want to pay the athletes fair market value. By any standard, that’s not fair. The argument that the schools are paying, they’re paying the cost of tuition, room and board, matters. But to what extent?
College athletics are not fair. Sport is not fair and neither is competition. I remember a talk with current Southern Illinois University director of athletics, Mario Moccia, about the NCAA’s television revenue system and I used the word fair.
Moccia looked at me and said “The entire system is not fair. It’s not built to be fair. The fact is, we enter this knowing that it’s a stacked deck against us. We have the choice to participate in that system or not. We choose to participate.”
In this instance, Moccia was talking about the issues that schools outside of the top six conferences have getting exposure and being considered as possible NCAA men’s basketball tournament at large contenders. But the words fit here as well.
And so does the idea that if schools start to pay students a stipend, conferences like the Missouri Valley Conference, a so called mid-major conference that usually is well represented in the NCAA men’s basketball tournament (Wichita State qualified for the Final Four in 2013) might end up trying to do the same.
Problem is, most Missouri Valley Conference schools have to get by with the help of athletic fees from students. Students are already paying at least some portion of the load for athletics, the thought of those students paying to give athletes some spending money is too much.
Add to that the fact that smaller conferences like the Ohio Valley Conference really depend on these fees.
At Eastern Illinois University, student fees comprise nearly half of the athletic budget. Smaller schools without a big media rights package and only one share from the NCAA Tournament, have to make do with student fees and their yearly money games from football (when a smaller school agrees to go to a larger school and take a beating for a nice fee).
But it’s not just smaller conferences that rely on student fees. In a story written by Bloomberg last summer, the Big Ten Conference gets an average of $61 from each student for athletics fees. (Story here).
That’s the same Big Ten Conference whose commissioner said that power conferences like it need to have more control over issues involving money so that it could more easily give full value scholarships (up to $6,000 per student) if necessary.
And what happens when a school like Rutgers joins the Big Ten. Rutgers put $28 million worth of student fees into its athletic program in 2012, says Bloomberg.
It’s one thing for a smaller conference like the Ohio Valley to rely on student fees or for a high end mid major conference to do the same. But when you are talking about conferences that make billions of dollars a year, taking money from students to break even is just wrong.
The Big Ten Conference has its own television network. The conference has some of the most profitable college sports programs in the nation. And the average of $61 worth of student fees is among the lowest of any conference in the nation. But using student fees to pay college athletes is morally repugnant to say the least. Especially when there is a much easier path to take.
That path is the Olympic model. I’ll talk about that tomorrow.