As some people already know, NCAA Bylaw 12 is somewhat of a hobby of mine; probably because, as someone trained in the law, I am so interested in the right to privacy and subsequently, the right to publicity (the right to publicity is often said to have come from the broader right to privacy).
Legal scholars have written quite a bit on NCAA Bylaw 12 and how it potentially clashes with the right to publicity. Bylaw 12 is often said to be the most relevant rule to athletes keeping their amateur status and people often just refer to it as the “athletes can’t get paid rule.” But, Bylaw 12 is more than the rule that keeps athletes from getting paid and you can check my resource links if you want to read the entire Bylaw in full. The rule is often talked about in conjunction with Form 09-3a, which requires student-athletes to allow the NCAA or a “third party acting on behalf” of the Association “to use [his] name or picture to generally promote NCAA championships or other NCAA events, activities or programs.” A lot of contention surrounds this rule as some scholars believe NCAA athletes are “taken advantage of” because amateurism is imposed on them. Others believe the contracts are unconscionable. Yet, there are arguments supporting the need to maintain amateurism in college sports, supported partly by the voluntary nature of college sports.
As a result of all the legal (and moral) discussion surrounding Bylaw 12, I have been making an effort throughout my legal education to follow the Ed O’Bannon case. I missed posting an update to the case that was reported a few weeks ago in which the Judge ordered ESPN to turn over contracts with the NCAA — this would allow the plaintiffs to get a better idea of the amount of money involved in these contracts and could affect damages or a potential settlement. You can read more about the decision on here.
This case began in 2009 and focuses on how the NCAA uses images of former athletes, accusing the NCAA of denying former athletes the right to publicity. Ultimately, if a decision is reached, this class action could have an effect on both former and current athletes and the NCAA’s right to the use of their images and likeness.
If you are looking for a good legal read about the right to publicity and the O’Bannon case, “OUR BLOOD, OUR SWEAT, THEIR PROFIT: ED O’BANNON TAKES ON THE NCAA FOR INFRINGING ON THE FORMER STUDENT-ATHLETE’S RIGHT OF PUBLICITY” was published in 2010 by Texas Tech Law Review. The article was written by Leslie E. Wong, and it is worth trying to track down (unfortunately, I have not been able to find a link to it online). The article proposes establishing a trust fund for former Student-Athletes, which O’Bannon suggested in the original complaint. Using this suggestion, the NCAA would establish a trust fund with the commercially generated revenue of athlete’s that would be created separately from the organization and its member institutions. The money in the trust fund could be used to help pay health or pension plans for former student athletes, used for further education or professional training, or other programs to assist former student-athletes who have struggled in their professional careers.
When I first started learning about the controversy surrounding Bylaw 12, I always thought some type of trust fund would be a unique idea, as it would achieve the goal of maintaining amateurism, but also provide former athletes with compensation or needed services. Of course, there is always the question of how practical a solution that really is…Wong’s article certainly points out there would need to be a reallocation of funds and also at least some change to the Bylaws, but potentially not any onerous changes.
I leave it to the experts to discuss the practicality of potential changes, but as long as this case is pending Bylaw 12 will remain a hobby of mine.