Labor & Employment Law Daily Should student athletes be paid for name, image, and likeness?
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Friday, September 18, 2020

Should student athletes be paid for name, image, and likeness?

By Pamela Wolf, J.D.

In a $15 billion college sports industry, is a “good” education enough compensation for athletes who generate revenue?

Whether or not student athletes should be compensated for their name, image, and likeness was scrutinized at a Senate Health, Education, Labor, and Pensions (HELP) Committee hearing on September 15. A fundamental issue is who should benefit from the compensation: the individual student, the whole team, the educational institution, the league?

Committee Chairman Lamar Alexander (R-Tenn.) framed the question for the hearing as “whether the tradition of an intercollegiate student-athlete is worth preserving, and if so, how to do it? Specifically, what will be the impact on that tradition if a growing number of states pass laws allowing commercial interests to pay individual athletes for the use of their name, image and likeness?”

Who should benefit financially? But the real question may be who should be sharing in all the revenue generated from college sports. As to compensation for the name, image, and likeness of student athletes, Alexander said the money should benefit “all student athletes at the institution,” and athletes “should not be on the payroll and treated as hired hands.”

On the other hand, Ranking Committee Member Patty Murray (D-Wash.) sees the college sports industry as “a system of exploitation” and would like to see more financial benefit flow to the student athlete.

They are students, not professionals. Alexander focused on the educational experience and opportunities afforded student athletes. “I do not see a good ending to allowing a few student athletes to be paid by commercial interests while most of their teammates are not,” he said. “If young athletes want to be a part of a team, enjoy the undergraduate experience, learn from coaches who are among the best teachers, and be paid a full scholarship that helps them earn a degree worth $1 million during their lifetime, their earnings should benefit all student athletes at that institution. If they prefer to keep the money for themselves, let them become professionals.”

Economic and racial inequity. Murray, though, addressed the financial inequities between student athletes, who generally are not permitted to work, and coaches and league officials. “For too long, the $15 billion college sports industry has been a glaring example of economic and racial inequity—one where the majority of athletes in Division 1 revenue-generating sports are black, and mostly white coaches and [National Collegiate Athletic Association (NCAA)] officials make millions off the labor of young college athletes,” according Murray.

“College athletes are struggling to manage their academic course loads and grueling daily schedules filled with workouts, practices, and games, while also facing food and economic insecurity, while the NCAA and member schools enter into billion-dollar media deals, universities invest in luxury facilities, coaches receive million-dollar salaries, and so much more,” she added. “This is immoral and we shouldn’t accept it.”

What should Congress do? According to Alexander, Congress should “act in as limited a way as possible, to authorize an independent entity, safe from litigation, to write rules governing payments for the use of name, image, and likeness” and “provide aggressive oversight of that entity, rather than try to write the rules.”

Who would be that “independent entity?” Alexander thinks the “independent entity” should be the NCAA. Acknowledging that the NCAA is controversial, he said that this would be the case for any entity writing rules for intercollegiate athletics. “If the NCAA is not doing a good job, the college presidents who are in charge of it should reform it,” Alexander said. “Giving the job to a new entity would take forever. Giving the job to some existing entity, such as the Federal Trade Commission, without expertise and without any responsibility for higher education makes no sense.”

Broad-based reform. The National College Players Association also weighed in: “Congress should not ignore sexual and physical abuse, deadly negligence, poor graduation rates, and other serious issues that harm college athletes while passing NCAA-friendly [name, image, and likeness] legislation designed to roll back rights and freedoms states are providing college athletes.” Instead, Congress should “adopt broad-based reform that includes the third party enforcement of uniform health and safety standards, protections to increase graduation rates, medical expenses, revenue sharing and other key protections for college athletes,” according to the NCPA.

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