IP and the NCAA: A Bill That Could Change Everything
On any given day at a football practice at Sanford Stadium, home of the UGA Bulldog football team, starting quarterback Jake Fromm is photographed. His image, however, is not his own, but the property of the National Collegiate Athletic Association (NCAA), a nonprofit organization that regulates student athletes and athletic conferences across the country. Should Fromm decide to publicly endorse a new product on his Instagram page, a social media account that is specifically attached to his identity as an NCAA athlete, he would forgo his amateur status and endanger his college career.
Despite its athletes not profiting from their athletic success, the NCAA’s revenue has approached, and in some years, eclipsed $1 billion. Almost 90% of this revenue comes from the television and marketing contracts between the NCAA and various networks for their broadcast of the nationally popular NCAA Division 1 Men’s Basketball Championship Tournament, colloquially known as March Madness [1]. None of this revenue is returned to the collegiate athletes although it is a direct result of their talent, time, and personal brands.
As current law stands, collegiate athletes cannot profit from the use of their own names, images, or likenesses. Student-athletes are unable to fully harness the power of the personal brands that they have spent years building and developing because the NCAA forces them to surrender publicity rights in order to maintain their amateur status. Although many student-athletes receive scholarships and various forms of financial aid, the athletes contributing most to their team’s success and the success of the NCAA are not always the recipients of these scholarships.
For example, in 2018, Gabby Thomas won the NCAA indoor 200m title, setting a new record for the event in the process. She garnered many wins, accolades, and “quietly” became “one of the best sprinters in NCAA history”. Per Ivy League rules, over the course of her three years of collegiate competition, she never received any scholarship money, despite being one of the best sprinters in the country [2]. For Gabby Thomas, her intellectual property is her image, it is the photo of her smiling next to her record-breaking time, and it is tied to the countless years she has spent practicing, competing, and ultimately succeeding in her sport. Although that image could have resulted in monetary gain for Thomas, NCAA rules forbid an athlete’s monetization of their name, image, and likeness [3].
However, on March 14 (in the midst of March Madness), U.S. Rep. Mark Walker (R-N.C.) and co-sponsor Rep. Cedric Richmond (D-La.) introduced the Student Athlete Equity Act, a bill that would strip the NCAA of its tax-exempt status if it “substantially restricts” [4] student-athletes from using or profiting from their images and likenesses.
Although at first glance this appears to be an effort to establish economic and financial equity amongst all collegiate student athletes, it is on the most basic level affording these athletes the same IP rights as the NCAA. The NCAA is the rightful owner of 34 trademarks registered with the U.S Patent and Trademark Office (USPTO), alluding to the fact that this organization understands the value and importance of one’s image and the monetary gain associated with that image. The Student Athlete Equity Act is a step forward in the recognition of IP rights of NCAA athletes and if passed, would afford them the rightful monetary compensation for the hard work and dedication that cultimate in their names, images, and likenesses.
[1] NCAA.org - The Official Site of the NCAA. (2019). Where Does the Money Go?. [online] Available at: http://www.ncaa.org/about/where-does-money-go [Accessed 10 Jun. 2019].
[2] Gretschel, J. (2006). [online] Flotrack.org. Available at: https://www.flotrack.org/articles/6157934-how-harvard-quietly-created-one-of-the-best-sprinters-in-ncaa-history [Accessed 10 Jun. 2019].
[3] Jahner, K. (2019). NCAA Tax Status Tied to Athletes’ Image Rights Under New Bill. [online] News.bloomberglaw.com. Available at: https://news.bloomberglaw.com/ip-law/ncaa-tax-status-tied-to-athletes-image-rights-under-new-bill [Accessed 10 Jun. 2019].
[4] Congressman Mark Walker. (2019). Walker Introduces Student-Athlete Equity Act to End NCAA Restrictions on Player's Publicity Rights. [online] Available at: https://walker.house.gov/media-center/press-releases/walker-introduces-student-athlete-equity-act-end-ncaa-restrictions [Accessed 13 Jun. 2019].
