The recently concluded Johnny Manziel affair shone light on the NCAA’s strict yet also confusing rules about how different people or organizations can use a student-athlete’s name or likeness. Athletes are not permitted to profit off their name or likeness. The university can use athletes in some types of promotions and commercial items, but not others. Athletes can even commit an NCAA violation by attending a charitable event in some cases.
In 2010, the NCAA tried to change those confusing rules. But not for athletes, mostly for institutions. And while that wold have been controversial in its own right, it is especially noteworthy considering the NCAA was sued in 2009 about these same rules.
Proposal 2010-26 was entered into the 2010-11 legislative cycle. The proposal grew out of one of the NCAA Task Force on Commercial Activity in Division I Intercollegiate Athletics. Right off the bat in the rationale of the proposal, the problems in light of current events are evident:
This proposal was developed in the spirit of balancing the importance of commercial sponsors in maintaining a comprehensive athletics program and the importance of protecting student-athletes from being exploited by commercial entities.
There were four sections of Proposal 2010-26. The first would have defined an athlete’s name and likeness for the purposes of the legislation:
12.02.2 Likeness. Likeness includes an individual’s image, photograph, likeness (whether actual, simulated, photographic, computer-generated, rendered, caricature or otherwise), voice (whether speaking, rapping, singing, altered or otherwise), personality, biographical information and/or other personal identification.
12.02.3 Name. Name includes an individual’s name, nickname, sobriquet, signature (whether actual, simulated, photographic, computer-generated, rendered, caricature or otherwise) and/or other personal identification.
Anyone who follows college sports can immediately see the issue. Video characters sure seem like “computer-generated caricatures” at best. And including signatures and nicknames as part of an athlete’s name is especially relevant in the aftermath of Johnny Manziel’s autograph case.
The second part of Proposal 2010-26 amended portions of Bylaw 12.5.1, which lists the types of permissible promotional activities in which student-athletes can participate. There was some minor deregulation of the existing nonprofit/institutional promotions legislation. More importantly, a section that would have allowed athletes to be used in promotions for commercial sponsors of intercollegiate athletics was shoehorned into Bylaw 12.5.1. That would have been allowed under the following conditions:
– The promotion is approved by the athletic director or a designee;
– The student-athlete signs a release and does not miss class;
– The affiliations between the commercial sponsor, the institution, and the student-athlete are all clearly stated;
– The promotion is worded such that the student-athlete does not endorse a product or service; and
– The promotion is not for alcoholic beverages, tobacco products, or an organization which promotes gambling.
This section also cleaned up the regulation of the sale by an institution of commercial items bearing the name and likeness of multiple student-athletes. Many of the conditions on using student-athletes in promotions were included in the legislation on sell items bearing student-athletes names and likenesses. Critically, Proposal 2010-26 would not have allowed the sale of commercial items bearing the name or likeness of a single student-athlete.
The third section simply cleaned up Bylaw 12.5.2, which covers impermissible promotional activities in light of the changes to its counterpart, Bylaw 12.5.1. Finally the fourth section covered media activities, simplifying the rules which are currently slightly different between the in-season and off-season periods.
Proposal 2010-26 eventually spawned three other proposals that sought to modify the original. Proposal 2010-26-1 would have limited commercial promotions to those whose primary purpose was to identify the sponsors relationship to the institution or event. 2010-26-2 would have limited commercial promotions involving the name and likeness of student-athletes to congratulatory advertisements (e.g. “Nike congratulates Alabama on their national title”).
Proposal 2010-26-3, which was adopted and successfully changed the original proposal, more dramatically limited its application. It deleted the new definitions of name and likeness and the sale of commercial items bearing the name or likeness of student-athletes. It limited the use of the name or likeness of student-athletes in commercial promotions to congratulatory advertisements. And it added a section on the sale of highlight videos and media guides.
Proposal 2010-26 first went out to the membership in August 2010. At the 2011 NCAA Convention, the proposal was forwarded to the Division I membership where it got exactly two comments, one in favor and one in opposition. Between the January and April meetings of the Legislative Council, the Amateurism Cabinet offered the three modification proposals, one of which (2010-26-3) was adopted at the April 2011 Legislative Council meeting. Then the Presidential Retreat happened and the proposal died on the vine, officially being defeated under the sunset provision in April 2012.
In light of Johnny Manziel’s inadvertant violation and the impending class certification decision in the O’Bannon case, the original Proposal 2010-26 would have been a disaster. It would have allowed the sale of more athlete memorabilia and the use of athletes in more commercial promotions, without athletes receiving any compensation (or additional compensation, depending on how you look at it).
Looking back on it now, three years later, Proposal 2010-26 can be seen in two different ways. The fact that the idea was even floated is egg on the NCAA’s face considering it came after the O’Bannon lawsuit was filed. But the slow, deliberate NCAA legislative process, often criticized for taking too long to fix obvious problems, in this case did its job. Discussion, debate, and input from many sources (including student-athletes) watered down and ultimately killed a proposal which, in retrospect, should never have seen the light of day.
This is why the story of why the NCAA is the way it is can be so complicated. Sometimes the NCAA makes the wrong choice. Sometimes it moves with such intertia that it is a wonder anything ever improves. But sometimes that very intertia prevents the wrong choice from being made.