Student-Athlete Name & Likeness Litigation: Will it Lead to a Stronger College Athletes Union?

Documents that were recently released in connection with the filing of a motion in the NCAA student-athlete name and likeness litigation (O’Bannon v NCAA) show that one of the defendants, the Collegiate Licensing Company, has contemplated starting a college athlete’s union. The CLC aids many universities, conferences, bowl games, and the NCAA in protecting, managing, and developing their brands. As part of that process, the CLC is the trademark licensing agent for these entities.

Presumably, the idea behind starting a college athlete’s union is the opportunity to provide the same types of services to the union and its individual members: college athletes. But, what many, including the CLC, may not know is that a college athlete’s union already exists: the National Collegiate Players Association (“NCPA”).

The NCPA was founded by Ramogi Huma. Huma is a former UCLA scholarship football player. He started the NCPA after the NCAA suspended one of his teammates for accepting groceries after his scholarship money ran out at the end of the month. The NCPA claims that it has over 14,000 current and former student-athletes as members.

Huma and the NCPA have been behind some of the recent efforts to make NCAA bylaws and state legislation more student-athlete friendly. For example, the NCPA was intimately involved in the White v. NCAA litigation. This case sought to allow Division I institutions to provide athletics-based scholarships to men’s basketball and football players equal to each school’s actual cost of attendance. I was a member of the attorney team that represented the NCAA in this case and it ultimately settled with no change to the NCAA bylaws. Ironically, the NCAA now agrees with the NCPA’s stance on allowing Division I members to award athletics-based scholarships up to a school’s cost of attendance. But, much of the membership is still opposed to the rule change. I previously discussed this topic in this earlier entry.

More recently, the NCPA was successful in lobbying California to pass legislation known as the Student Athlete Bill of Rights. The legislation mandates that certain California universities continue to provide scholarships to student-athletes who suffer career ending injuries, pay health insurance premiums for low-income student-athletes, and pay for injured student-athletes medical bills (even after they are no longer attending the university). Governor Jerry Brown signed the bill into law last week. I previously covered some of the problems with the legislation here.

The NCPA also, among other things, successfully pressured the NCAA into increasing the amount of the NCAA death benefit and removing the cap on the amount of money a student-athlete can earn from a part-time job.

While the NCPA has had success in changing NCAA bylaws and passing state legislation, it appears the CLC envisions taking things a step further: organizing student-athletes for the purpose of licensing the use of their names and likenesses during and after their college careers (the CLC documents refer to the organization as the College Student-Athlete Players Association). For example, if a Manhattan, Kansas car dealer wanted to use Colin Klein in a TV ad, CLC would negotiate the terms of the deal. CLC would do the same for other current and former student-athletes who had offers for advertising, apparel, or other promotional opportunities.

The CLC’s potential plan has one big problem: current student-athletes are deemed ineligible the moment they accept payment from third parties based on their participation in college athletics. Once Colin Klein accepts payment from the car dealer he can no longer play football for Kansas State. And he is no longer on TV, no longer being talked about as a Heisman candidate, and no longer helping the car dealer to sell cars. The same would be true for other current student-athletes who sign on with CLC, and CLC would quickly run out of student-athlete clients.

The only chance of current success for the CLC’s potential plan would be a massive organizing campaign of FBS football and Division I men’s basketball players. These student-athletes are helping to generate nearly all of the revenue for many university athletic departments and the NCAA. If they were to strike, and if the flow of revenue stopped, it would cripple the athletic departments and the NCAA. Perhaps the NCAA would change its bylaws to allow student-athletes to profit from their names and likenesses as a result.

Would current Division I football and men’s basketball student-athletes organize en masse and refuse to play in an effort to gain the ability to license their names and likenesses? Maybe. Putting myself back into my 18-year-old mind, if a CLC representative came into the locker room and told me that my teammates and I would be able to get paid for promotional appearances if we joined the CSAPA it would be appealing. But, if he or she then told us that we would likely not be playing basketball for at least a portion of the season and that we could potentially lose our scholarships, I would have likely rejected the invitation to join. I’m sure many current student-athletes would feel the same way. Putting a free education at risk for non-guaranteed licensing payments is a big risk.

But, if the plaintiffs in the O’Bannon lawsuit are successful that risk could be eliminated. The plaintiffs in the case are currently asking the court to implement a system where money generated from the licensing of the names and likenesses of Division I football and men’s basketball players is held in trust until the student-athletes’ playing careers are over. This would be a lot of money as it includes the money the NCAA, the conferences, and the schools receive from television broadcast rights agreements.

It would be interesting to see how the NCPA and the CLC react to the implementation of this system. Would they join forces to act as student-athletes’ licensing agents or fight for supremacy? We’ll have to wait and see how the litigation progresses, so stay tuned for further developments in the case.