NCAA Proposal Would Give Companies More Latitude to Use Athletes' Images in Ads

January 10, 2011

Should NCAA rules allow a Nike ad to feature University of Oregon football players in action, with the company's ubiquitous swoosh and the name of the university prominently displayed? What if Under Armour, which outfits the Auburn Tigers, wanted to promote a sales event at which the university's star quarterback, Cam Newton, would appear to sign autographs?

Under the current amateurism rules, neither scenario would be allowed.

But both would be perfectly legitimate if leaders in the NCAA's Division I adopt a proposal that is up for a vote this week at the association's annual meeting in San Antonio.

Existing rules generally bar companies from using an athlete's name, image, or "likeness" in advertisements, promotions, or other ventures. The proposed measure would allow corporate sponsors to feature game clips of current athletes in their TV ads, for instance, as long as the ads include the name of the athlete's institution. It would also allow companies to publicize sales events at which college athletes would be present.

Supporters of the proposal say it would modernize and streamline outdated rules that govern the delicate relationship between athletic departments and their corporate sponsors, which provide much-needed revenue. Critics say the proposed changes could send college sports down a slippery path, leaving athletes too closely linked with—or exploited by—the marketing of commercial products.

James E. Delany, commissioner of the Big Ten Conference, which opposes the measure, has called the proposal "the essence of exploitation" that would allow companies "virtually unlimited latitude" in using athletes' images to promote their commercial interests. The college presidents and other members of the Pac-10 Council also oppose the measure, having concluded that profits gained from the use of athletes' names or likenesses would be "philosophically inappropriate." And the NCAA's own Division I Student-Athlete Advisory Committee has been wary, in particular about a provision that calls for athletes to sign a release statement allowing companies to use their images.

Michael Rogers chairs the NCAA's Amateurism Cabinet, the group charged with coming up with proposals to alter the amateurism rules in this area. The cabinet's work was largely inspired by a presidentially led panel on commercialism, which issued a report two years ago that recommended a careful overhaul of the regulations.

"What we continue to prohibit is direct endorsement," says Mr. Rogers, a law professor at Baylor University who is also the institution's faculty athletics representative. "No student-athlete is going to be holding up a can of soft drink and saying, 'This is delicious. Buy it.' But you might well have an image of a student-athlete diving into the end zone or clearing the bar at the high jump, and you would have a promotion where the commercial venture would say, 'We at XYZ Corporation also strive for excellence, just like the Baylor Bears.'"

Amy P. Perko, executive director of the Knight Commission on Intercollegiate Athletics, which opposes the proposal, says the oft-cited example of an athlete directly promoting a product is outdated—and skirts the significant changes that the proposed legislation could bring.

"Joe Namath is the last athlete I can remember who physically held a product and said, 'Use this,'" she said. "Advertising has changed."

Familiar Challenge, New Urgency

Leaders in college sports have struggled for years to modernize the commercialization rules. The issue last came up in 2007, when three proposals that suggested changes similar to the ones in this year's measure were defeated.

The current regulations, which almost everyone agrees are painfully outdated, speak of printed posters, calendars, and media guides—but not of the myriad technological advances that have changed the way college sports is marketed and consumed. Nor do the current rules define what, exactly, constitutes an athlete's name or image.

Jon T. King, a lawyer in San Francisco, is keeping a close watch on the proposal. Mr. King represents the former UCLA basketball standout Ed O'Bannon, who, along with a dozen or so former college athletes, is suing the NCAA over the name-and-likeness issue. In the lawsuit, Mr. O'Bannon asserts that the NCAA violates federal antitrust law by barring former college athletes, once their playing days are over, from profiting from NCAA- or college-licensed products—video games, classic highlights, and so on—that use their images and likenesses. (Mr. O'Bannon's case has been consolidated in a California federal court with another case against the NCAA and video-game developer Electronic Arts, brought by the former Arizona State and Nebraska quarterback Sam Keller.)

The context for Mr. O'Bannon's case is slightly different from the situations to which the current proposal—which concerns itself only with enrolled athletes—would apply. Still, Mr. King says he is particularly interested in the "incredibly wide-ranging and broad" terminology used to define an athlete's name and likeness: Under the proposal, an athlete's likeness includes not only his or her name or photograph, but simulated or computer-generated likenesses, too. The definition also includes an athlete's voice—singing, rapping, or speaking—as well as his or her personality.

"This looks like a dramatic sea change," Mr. King said in an interview. "We view it as a complete grab of all rights, forever, in an attempt to cure the problems brought up in our case."

An Issue of Control

If companies were permitted to use athletes' names or images in their promotions, how much say would the athletes themselves have in the matter?

It's a key question the Division I Student-Athlete Advisory Committee pondered last fall when it first reviewed the proposal, says Nick Fulton, a former swimmer at the University of Wisconsin at Madison who chairs the group. The proposal states that colleges can use athletes' names or likenesses in commercial activities as long as the athlete signs a release statement beforehand consenting to that use.

But it's not clear what that release statement would look like, or how much freedom athletes would have to refuse it, Mr. Fulton says. For that reason, the committee took a preliminary position against the proposal in November, Mr. Fulton says. (The group will revisit its position when it meets in San Antonio on Tuesday.)

"We don't want to get into a situation where a student-athlete doesn't have control over their likeness or image," he says.

When the NCAA's Division I Legislative Council, the 32-member group that votes on all proposed changes to NCAA rules, takes up the proposal during its two-day meeting on Wednesday and Thursday, it has three options: it could approve the measure, defeat it, or send it back to the NCAA membership for comment. If the proposal passes the council, it would then proceed to the Division I Board of Directors, which has the final say on all legislation.

Given the disagreement among some key constituents, Mr. Rogers, of Baylor, says he is prepared to make adjustments.

"We're going to be watching this," he says. "And if we need to temper it, we will."