By 2023, college football players at UCLA and Stanford will likely have the opportunity to sign … [+]
Three weeks have passed since California governor Gavin Newsom signed into law the Fair Pay to Play Act. Since then, nearly one dozen states have proposed similar bills to allow their college athletes to sign endorsement deals. And yet, the NCAA still has not presented a reasonable path toward liberalizing its own rules.
The NCAA’s silence on reforming its athlete endorsement rules is not surprising. The monopolist college sports trade association has long balked at the idea of awarding any additional economic rights to college athletes, irrespective of external pressure.
Indeed, even in an era where Division I football and men’s basketball coaches regularly fly on private jets and collect multi-million dollar salaries, the NCAA’s obsession with disallowing its athletes from signing even modest endorsement deals has not waned one iota.
Yet, as I have explained in a previous FORBES article, the NCAA could very easily change its amateurism bylaws to add an exception to allow athletes to sign endorsement deals, without putting any of the association’s broader interests at risk. Indeed, the NCAA could even allow member schools to continue to protect their own intellectual property through the process by adding to association bylaws this new, fifth exception to their definition of amateurism:
- 12.01.5 Permissible Student-Athlete Licensing Rights. A payment administered by a non-educational institution is not considered to be pay or the promise of pay for athletics skill, provided the student-athlete does not use the trademarks of the NCAA or any NCAA member college in any manner that may be construed as an endorsement, unless such manner is otherwise protected by principles of the First Amendment or fair use.
In the end, the NCAA’s efforts to maintain rules barring athlete endorsement deals is likely a foolish move, as it will back the trade association into a legal corner. NCAA rules, which are a product of the agreement among member colleges, are reasonably subject to antitrust challenge. And, if the NCAA were to ban a member college for complying with state laws that require colleges to allow athletes to engage in free market transactions, the NCAA would very likely be found in violation of antitrust law.
Moreover, even beyond the NCAA’s antitrust risk, if the NCAA does not reform its amateurism rules to allow for athlete endorsements, the trade association might find many of its members needing to form a rival association to avoid liability under their home states’ laws. If that were to happen, the NCAA could “voluntarily” lose its monopoly control over the college sports industry and force into being the very type of competition for elite athletes that its membership has long sought to avoid.
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Marc Edelman (Marc@MarcEdelman.com) is a Professor of Law at Baruch College’s Zicklin School of Business and the founder of Edelman Law. He is the author of “A Short Treatise on Amateurism and Antitrust Law,” “How America Should Reform its Sports Agent Laws” and numerous other sports and education law articles.
