NCAA & Esports name, image, and likeness

The NCAA will see some major changes over the next 12 months, and Esports will be involved in those changes.

This year will hold many discussions about college athletes and the?NCAA's board of governors?process to update guidelines?around name, image, and likeness(NIL). This conversation partially revolves around?gaming?and the way student-athletes could earn compensation from companies for using their personal brand. The NCAA board will only gather feedback through April 2020, and make rules recommendations in January 2021. However, the discussion around income and esports may not happen without public opinion.

Let's review how we got here

PHOTO BY JED JACOBSOHN/THE PLAYERS' TRIBUNE

People sometimes come up to me saying, “Hey, you’re the dude that stopped the video games.” But those weren’t the intentions our side had. Our intentions were, first and foremost, starting the conversation of players getting paid. The amount of money that student-athletes are bringing into universities is staggering — it’s in the billions.

In 2015 the Ninth Circuit Court of Appeals affirmed a ruling for O'Bannon V. NCAA after Ed O'Bannon a former?ULCA?and?NBA?athlete sued for use of his image for commercial purposes. This case created conversations around?intellectual property and anti-trust?which now leads us to our current state. Electronic Arts, the creator, and publisher of NCAA video games agreed to a?$40 million dollar settlement, paid to over 29,000 former NCAA athletes. This was the first major anti-trust decision against the NCAA. Now O’Bannon speaks about the 10 years of the lawsuit efforts he was a part of and how it has shaped this movement in college athletics.

College athletes like Katie Ledecky who competed in the 2016 Summer Olympics netted a total of?$355,000 in medal awards?that she will be able to keep while remaining eligible to compete for Stanford. This raises the question of amateurism, and how it has created many problems for the NCAA while they often fail to administer their own rules. The issue of commercialism for the NCAA has been shown to contradict its own values.

In 2017, the University of Central Florida kicker Donald De La Haye was ruled ineligible to compete in an NCAA-sanctioned competition because he ran a monetized Youtube channel. The student-athlete argued that he was using his?youtube channel?as a platform to inspire and motivate people. The question raised was, should the NCAA and its college institutions be allowed to profit off college athletes if the athletes can't do the same.

"It was surprising," De La Haye says. "I feel like I'm owned by the NCAA. They can use my name and my likeness to make money off of me, but I can't. I'm not out here selling autographs. I'm not boasting that I'm a UCF player. Any other YouTuber with the same amount of subscribers would make the same amount of money as me. It's a senseless rule, in my opinion, especially in the age of social media."

This story about De La Haye may surround the most important issue that will not be talked about this year. Making money on?social media, esports, and streaming is clouded by so much intricacy.?

The Commission on College Basketball presented in 2018 about its?findings and recommendation?to address these issues. In a news conference at the NCAA headquarters, the commission presented those findings. At the?podium, speaking?was Condoleezza Rice, Former U.S. Secretary of State, while former NBA players David Robinson and Scottie Pippen sat on the stage.

“It is hard for the public, and frankly for me, to understand what can be allowed within the college model - for the life of me I don’t understand the difference between Olympic payments and participation in ‘Dancing with the Stars’ - and what can’t be allowed without opening the door to professionalizing college basketball,” Rice said.

The mention of “Dancing with the Stars” was a reference to Notre Dame basketball star Arike Ogunbowale’s appearance on the popular ABC show.

In California, State Senator Nancy Skinner?decided the Olympic model of athletes being compensated for their brand should work for college athletes, as they should have the same rights as any other student on campus.

"Imagine if in any other billion-dollar industry, like TV and movies, college students were the primary source of the talent that generated the revenue for that business and those college students were completely denied compensation," Skinner told the Los Angeles Times. "There would be a universal outcry. And yet we say it’s OK for athletes."

California changed the game

California’s Governor Gavin Newsom signed into law?SB206 coined as the "Fair Pay to Play Act" in September 2019,?which takes effect in January 2023 to benefit student-athletes from the creation of an unrestricted market for anyone to?use their name, image or likeness. This bill makes it possible for players to be able to make money off video games, autograph sessions, or endorsements. With the passing of this bill, many other states started seeking similar opportunities.

“I think it gets very tough,” University of Kansas Director of Athletics Jeff Long said. “Without this bill passing, we would be placed at a disadvantage.”

A dozen states in late 2019 and early 2020 have proposed bills aimed at putting rules in place before the NCAA or congress makes their rulings. One state where an NCAA basketball team is a regular in the top 25 looks to pass a bill with some interesting triggers. Kansas’s bill will permit student-athletes to receive compensation for the use of their name, image, likeness rights or athletic reputation when 15+ other states adopt similar legislation. Schools are hoping to not be last, just in case they miss recruiting opportunities but don’t want to be first either. While schools are fearing recruits are enticed by the ability to earn income in different states, they are also fearing the heavy hand of the NCAA. So, being first may set them back, but being a part of a movement gives them some comfort.

Mark Emmert the NCAA President stated to congress, "If implemented, these laws would give some schools an unfair recruiting advantage and open the door to sponsorship arrangements being used as a recruiting inducement. This would create a huge imbalance among schools and could lead to corruption in the recruiting process."

This warning from the NCAA may have come with a short memory. NCAA schools have been involved in corruption for many years. Surely the NCAA did not forget KU and Adidas, or when Reggie Bush forfeited his 2005 Heisman Trophy for receiving benefits while at USC, or Kelvin Samson making improper phone calls??

Some may say there are already imbalances among schools when 99.3% of the top 100 players in the country go to power 5 schools. Are there already unfair recruiting advantages if a school has $10,500 for each player in the locker room with a 43-inch flat screen tv? Do new laws create imbalances or are they already in effect with LSU creating Air Emirates first-class locker pods?

Looking at how much the NCAA and it’s schools bring in on advertising around the performance of student-athletes is also very daunting. The NCAA March Madness Men’s Basketball tournament has generated more than 4.5 billion of national TV ad spending since 2015. In comparison, some of those student-athletes have struggled to even eat at night.?

“Sometimes there are hungry nights when I am not able to eat, but I still got to play up to my capabilities. I don’t see myself as an employee, but when you see your jersey getting sold, to some credit, you would want something in return.” Shabazz Napier a UCONN player said to a group of reporters. “Sometimes money is needed. I don't think you should stretch it out to hundreds of thousands of dollars for playing, because a lot of times guys don't know how to handle themselves with money.”

Division 1 student-athletes must sign the From 19-1a before competing, saying that they are amateur and giving up any compensation for playing and promise to abide by all the rules in a 400-plus page manual. These NCAA rules can have many repercussions for student-athletes and be enforced unevenly. Jamal Fenton was suspended for 3 games for an NCAA violation for unknowing he received a discount for a ballroom rental.

Video games started the conversation

Bringing us back to Ed O’Bannon and the original lawsuit that sued the NCAA for his name, image, and likeness being used in video games. O’Bannon says, “Everyone is getting paid, whether it's the coaches, athletic directors, trainers, doctors; everyone is getting paid off of that money that the athlete is bringing in, but the athletes themselves.” He continued, “The purity of amateur sports is out the window. The games are on television, there are ads all throughout, and the amount of money they [students] are bringing into the universities is staggering. It’s in the billions.”

During these next few months that the NCAA will spend meeting and researching, they need to understand what earning income beyond local endorsements from a car dealer or restaurant means. If the NCAA is aware that a student-athlete can make money from Youtube videos, surely, they are aware that anyone can make money via social media influence or through live streaming.?

We already see professional athletes streaming and gaming on platforms like Twitch, Mixer, Youtube, and Facebook. Trevor May is an MLB Minnesota Twins relief pitcher that also streams in the offseason and downtime on Twitch with his friends Ninja, TimtheTatMan, DrLupo, and ActionJaxon. There are students across the country from thousands of colleges and universities earning money as streamers and influencers. Derek Beach known as BeachVA on Twitch is a student-athlete at Ottawa University on the Overwatch Esports Team. His gamer tag is Beach on Overwatch and was at one time ranked in the top 500 players in the world.

While streaming Overwatch in March 2020 he was asked a couple of questions about college esports and answered them live in the middle of a game live on his stream, which goes to show some great capabilities of gamers and live streaming.

Beach spoke about the ability to make money while a college esports student-athelte saying, "You could restrict the university itself from the players making any money, but, no matter what, the players will be able to make money in their own ways. No matter how much you restrict being able to make money in a tournament, the exposure you will be getting going into your next live stream; you will have so many extra viewers and people interested in your content and you personally. It is kind of similar to traditional sports."

College esports student-athletes are already bringing in money from streaming, public tournaments, and sponsorships. Streamers can earn money by creating content on their live streams by posting links for people to make donations. These donations to their stream along with cash prizing in competitions are going to be a tricky topic to navigate for the NCAA.

Eligibility is the question

Jon Solomon a contributor to CBS Sports wrote about ways college athletes can get paid and remain eligible for their sport. The NCAA has standards for being deemed an amateur in one sport while clearly a professional in another. A pro athlete paid in one sport can simultaneously play college athletics in a different sport and receive a scholarship. It doesn't happen much, but the sport most frequently impacted is a college football player who also participates in minor league baseball.

With these standards, a college basketball player could and should right now be able to play professional esports. Esports is not considered a sport by the NCAA, so figuring out if student-athletes may be able to compete in tournaments can be tricky. NCAA student-athletes are allowed to earn prize money based on performance. In tennis (which is an individual sport), a player can receive up to $10,000 per year in prize money before or during college. The prize money can only come from the sponsor of an event in which the player participates. Once the $10,000 is reached, NCAA rules state the player can still get additional money if it doesn't exceed his or her necessary expenses for participating in the event. In sports other than tennis, an athlete can get prize money from a sponsor based on his or her finish as long as the amount doesn't exceed the cost to participate.

The NCAA's wording is vague when it comes to competitions, prize money or performance. When you accept the terms and conditions of being a student-athlete in the NCAA, you authorize them to be able to request or receive any records relating to your academics, athletics participation, or amateur status from athletics activities (including leagues, clubs, teams, tournaments, associations, school districts, sanctioning or governing bodies), relating to your earning, collecting, or receiving prize money, salary, scholarship, or other benefits for academic- or athletic-related performance or in any athletics activities with professional athletes.

Is esports a sport?

The question still is whether or not the NCAA considers esports as a sport and if it qualifies under these conditions. Would a soccer player be penalized if she built a robot and won a competition with a prize of $50,000? She may have even competed under an alias. Does a robotics competition fall under academic or athletic-related performances?

With streaming, however, the NCAA self-employment standards do not allow a student-athlete to promote their business using name, photo appearance, or athletic reputation. This means a streamer taking online donations would be considered at minimum as a sole-proprietor business and that violates the NCAA standards. Looking at Minnesota wrestler Joel Bauman tested the NCAA in 2013 by promoting that he was an NCAA wrestler on a music video he produced. The music is mainly hip-hop that promotes positive messages and was created to inspire people. Bauman declined to remove his name from any songs and eliminate any promotion of his status as an NCAA athlete. He only made $0.60 cents per download on one song and it was far from viral. It became more downloaded only after the NCAA raised concerns. He was declared ineligible, a firestorm erupted, and he brilliantly turned the publicity into a marketing job. He has since fought in the UFC and created a brand.

The NCAA has its hands full right now with much more than the (NIL) and the annual March Madness basketball championship. In 2020, March Madness took a back seat to the COVID-19 outbreak and social distancing reigned above all traditional sports, concerts, conferences, church gatherings, schools, and work. Esports is in the perfect space to bring sports and gaming together during 2020. Read the article #Esports vs #COVID-19 to understand the dynamics of global isolation and the role of esports.

What is missing from this article? Comment below about the other issues you see with name, image, and likeness.

Article created by Bubba Gaeddert - Executive Director of the Varsity Esports Foundation