College Athletes Profiting Off of Their Names, Images and Likenesses—What Are the Consequences?
Florida Gov. Ron DeSantis recently tweeted, "Great news for college athletes in FL & across our country. I'm extremely pleased @NCAA has realized that this is a matter of fairness & equity, & that these athletes should have the opportunity to receive appropriate compensation for the use of their name, image & likeness."
November 12, 2019 at 09:45 AM
5 minute read
Florida Gov. Ron DeSantis recently tweeted, "Great news for college athletes in FL & across our country. I'm extremely pleased @NCAA has realized that this is a matter of fairness & equity, & that these athletes should have the opportunity to receive appropriate compensation for the use of their name, image & likeness." He was of course referring to the NCAA's unanimous vote to allow college athletes to make money from the use of their names, images and likenesses. Many have stated that this can be done without shattering the collegiate athletic model. Those sentiments are misguided.
The author of this article does not hold a position on whether shattering the current collegiate athletic model is good or bad. The author of this article is someone who deeply understands the issues surrounding college athletes receiving compensation for the use of their names, images and likenesses. He played football at The Ohio State University, he is a sports attorney at Holland & Knight, and he has been a sports agent. Below are a list of questions he does not know the answer to, and no one else does either.
- Will college athletes be allowed to enter into contracts with agents? Currently, college athletes cannot enter into contracts with agents and they cannot even have contact with agents except for under the rules set forth by the states and universities. Obviously, college athletes will need attorneys and agents to draft and negotiate their sponsorship deals. If the athlete engages an attorney, all communications with that attorney are subject to the attorney-client privilege. Florida and almost every other state has a law regulating sports agents and their interactions with college athletes. All of those laws will need to change. Almost every university has rules in place governing their student athletes' interactions with sports agents. All of those rules will need to change.
- How is this going to impact funding for collegiate athletic programs? The sponsorship money going to universities is going to shrink drastically. If I am Nike or some other sponsor of Duke University athletics, at a cost of tens of millions of dollars annually, why would I not enter into a deal for a few million dollars with the next Zion Williams and get way more bang for my buck? Why would I pay tens of millions to the University of Texas to be a sponsor when I can reach the same audience by entering into a sponsorship deal with the starting quarterback for the University of Texas every year for 1/20th of the cost? If less sponsorship money comes into universities, athletic programs are going to have to shrink and cut sports, such as women's soccer and men's tennis.
- Will college athletes be allowed to use the intellectual property of universities? Clearly, college athletes will not be allowed to use highly valuable university intellectual property, such as the Alabama or Clemson logos, in their personal marketing and sponsorship deals. This would be a violation of multiple federal and state laws if not permitted by the university and why would the university permit use of their intellectual property. How many college athletes are recognizable within a 60 mile radius of their university if you stripped off their affiliation with a university? How many outside of a 60 mile radius? Perhaps a handful of football and basketball players. Only a very small number of college athletes are going to be offered legitimate sponsorship deals. Most NFL and NBA players do not have sponsorship deals. Even fewer college athletes will be able to obtain legitimate sponsorship deals.
- What is going to prevent a billionaire from buying a championship? What is to stop a billionaire supporter of a football program from buying the best high school prospects in the country? It would not be hard. One of the billionaire's companies could enter into marketing and sponsorship deals with the 10 best freshman football players coming into the university every year and maintain those sponsorship agreements as long as those players are performing as expected. High school prospects will catch on quickly. What if the marketing contracts are illegitimate in the sense that the company paying the money does not expect to ever receive an equivalent benefit in return for the money paid? What is the difference between an enticement and a marketing deal? Who gets to decide?
These are just a few of the questions that are yet to be answered. However, based on these questions alone, the collegiate athletic model is shattered!
David Lisko is an associate in the Tampa office of Holland & Knight. He is a litigator and sports lawyer who drafts and negotiates athlete sponsorship agreements.
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