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One idea for how to let college athletes have endorsement deals

Steve Berkowitz
USA TODAY Sports

WASHINGTON — A Tulane law professor who also serves as the university’s associate provost for NCAA compliance has offered an extensive proposal under which college athletes could be allowed to use of their names, images and likenesses to make regulated endorsement deals while playing their sports in school.

The NCAA logo at center court.

In a white paper presented Tuesday in conjunction with his appearance before the reform-minded Knight Commission on Intercollegiate Athletics, Gabe Feldman argued that the NCAA’s current prohibition of such arrangements is “unnecessary to the NCAA’s core goals and may actually be counterproductive.”

Feldman told the commission that while the NCAA’s concern about the impact of this type of commercialization of athletes is legitimate, “commercialization is already happening” in college sports. And, he added, the association’s restrictions that prevent athletes from making money off their names and images “don’t prevent exploitation — they are exploitative.”

Feldman’s ideas were far from dismissed by some members of the commission, whose website states that its goal is to “ensure that intercollegiate athletics programs operate within the educational mission of their colleges and universities.”

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Commission member Len Elmore — a former college and pro basketball player who went on to become a lawyer — says there is a property right related to athletes’ names, images and likeness, although he would prefer to see group licensing arrangements rather than individual endorsement deals.

Commission Chairman William E. Kirwan said, “I think it’s too early to say that there’s been an evolution in the commission’s thinking about this,” but noted Feldman’s idea would allow athletes “to benefit from the use of the name, likeness and image like other students at the university are able to do if they have some form of notoriety. … The ideas that he presented were quite thought-provoking, and it’s something that we will continue to explore.”

The proposal from Feldman — director of the Tulane Sports Law Program — is more complicated. In his paper, he wrote, “Education and (name, image and likeness) payments are not mutually exclusive. … Commercialization and education can coexist … as long as the NCAA, universities, and student-athletes increase their commitment to education. (Name, image and likeness) agreements, if properly monitored and regulated can enhance — not detract — from the educational experience.”

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For example, Feldman proposes that athletes be allowed to make these agreements or receive benefits of existing agreements only if they are in good academic standing and making progress toward a degree.

His proposal would not allow athletes to make deals for what he termed in-game use of their names and images like broadcasts, rebroadcasts or photos. (This type of usage, on a class-action basis, was part of the foundation of the Ed O’Bannon antitrust lawsuit against the NCAA.)

But it would let athletes:

►Be involved in product endorsements, as well as receive pay for personal appearances and autographs, as well as for appearances on TV and radio shows.

►Contract with agents to assist with “pursuing, evaluating and negotiating” agreements.

►Enter into group licensing arrangements for items such as video games, trading cards and jersey sales.

All of these deals would have to be filed with the athlete’s school and the NCAA and would be subject to the school’s approval. Third parties wanting to make deals with athletes would be required to register with the NCAA. There would be a cap on the total number of hours an athlete could engage in endorsement activities during the school year and there would be limit on the total number of individual deals an athlete could have.

Feldman also proposes anti-circumvention rules designed to prevent sham deals that simply constitute pay for playing sports.

The idea, Feldman said, is change a system under which, for some athletes, “the only time their (name, image and likeness) has significant value is the only time they can’t benefit from it.”

And Oklahoma men’s basketball coach Lon Kruger, also appearing before the panel, said he informally found that market value does exist for at least some athletes. He said that in preparation for his appearance, he spoke with five local business owners about whether they would be interested in making deals with Sooners athletes if the NCAA’s rules allowed such arrangements. He said that all responded with a yes.

Still, he questioned the number of athletes to whom all of this would be applicable and whether the time, effort and money that would have to be devoted to the regulation that Feldman proposes would be worthwhile if it resulted in resources being taken away from other athletics programs.

“How do we help (elite athletes) recognize their value?” he said. ‘We should do everything we can to let elite athletes be treated fairly … but not at the expense of the 98% (of athletes) who have a pretty good deal.”

In addition to examining the name, image and likeness issue, the commission heard from a panel on the health and safety of athletes and issued a statement recommending that all of the revenue schools receive from the NCAA men’s basketball tournament be restricted to supporting athletes’ education and providing them with health and safety benefits.

Kirwan said that would mean these funds could be used to pay for athletic scholarships but not for coaches’ salaries and facilities. At present, according to the commission, 25% of the more than $540 million in tournament-related revenue is restricted to supporting education and other benefits.

“We have to act — not talk — forcefully,” said Arne Duncan, the former U.S. secretary of education who has joined the commission as co-vice chair. “This is something the NCAA can act on quickly.”

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