Alicia Jessop, Esq. (Alicia.Jessop@pepperdine.edu) is a tenure-track Associate Professor of Sport Law at Pepperdine University. An attorney licensed to practice in California and Colorado, Alicia is the president-elect of the Sport and Recreation Law Association and serves on the editorial boards for the Journal of Legal Aspects of Sport and Sport Innovation Journal. A regular contributor to the Washington Post, The Athletic, Forbes and other national media outlets, Alicia’s research focuses on legal issues related to athlete and sport consumer well-being. She has consulted with the National Basketball Players Association and Alliance of American Football to develop policies and practices aimed at enhancing athlete well-being and transition from sport.
In September 2019, California governor Gavin Newsom sat alongside LeBron James on an episode of James’ “The Shop” to sign into law California Senate Bill 206, better known as the “Fair Pay to Play Act.”[1] The law prohibits California universities, athletic conferences and the NCAA from preventing NCAA athletes to profit off of their names, images and likenesses (“NIL”).[2] The first law of its kind in the United States, the bill set into motion a flurry of state and federal legislative activity surrounding NCAA athletes’ NIL rights.[3] As states and Congress legislate around NCAA athletes’ NIL rights, to fully effectuate their legislative intent, they must make clear the rights of NCAA athletes to enter into group licensing deals and organize. Without clear language codifying the rights of NCAA athletes to enter into group licensing deals and organize, the NCAA could seize the ambiguity to develop NIL enforcement protocols preventing many NCAA athletes from actually being able to benefit from their NIL rights.
The case of another person in the room when the Fair Pay to Play Act was signed demonstrates the clear need for NIL legislation to contain provisions granting NCAA athletes the rights to enter into group licensing deals and organize. Ed O’Bannon’s NCAA basketball career was one for the history books—he played for his hometown university, UCLA, alongside his brother, cut down the nets as an NCAA Men’s Basketball National Champion, and was named Most Outstanding Player.[4] Despite his basketball success, O’Bannon’s biggest NCAA battle loomed in a different court. In 2008, O’Bannon visited a friend’s home after work; there, his friend’s son informed O’Bannon that O’Bannon’s likeness appeared as an avatar in Electronic Arts’ (“EA’s”) “NCAA Basketball” game.[5] The game avatar “. . . visually resembled O’Bannon, played for UCLA, and wore O’Bannon’s jersey number, 31.”[6] Notably, “O’Bannon had never consented to the use of his likeness in the video game, and he had not been compensated for it.”[7]
In turn, O’Bannon filed the first of several lawsuits against the NCAA, EA and licensing agency Collegiate Licensing Company, alleging that prohibiting NCAA athletes from profiting off of their NIL and limiting the compensation they can receive to a scholarship violated state right of publicity laws and federal antitrust law.[8] Ultimately, lawsuits challenging the NCAA’s athlete compensation model secured expanded scholarship and educational benefits for NCAA athletes, but did not extend them the right to profit directly from their NIL or secure non-educational, non-scholarship benefits.[9] Through NIL legislation, legislators are providing NCAA athletes access to a greater portion of revenue from the $14 billion-plus dollar intercollegiate sports industry.[10] However, to achieve this legislative intent, legislators must consider the NCAA’s actions surrounding O’Bannon as a warning of how the NCAA seeks to thwart the effectuation of the legislative intent of NIL bills.
The NCAA is a “member-led,” private, nonprofit association “dedicated to the well-being and lifelong success of college athletes” and governing body for three divisions of intercollegiate sport across nearly 1,200 colleges, universities and athletic conferences.[11] The organization’s rules are instituted by committees largely led by university presidents, athletics directors and conference commissioners.[12] Each NCAA division sets forth bylaws dictating the rules NCAA athletes must comply with to remain eligible.[13] Written into the Division I bylaws is the principle of “amateurism,” which states:
Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived. Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.[14]
Central to the NCAA’s defense in lawsuits brought by current and former NCAA athletes was the principle of amateurism.[15] The defense showed success, as courts used the amateurism principle and the proffered competitive balance it creates to rationalize ordered limits to NCAA athlete compensation.[16]
The NCAA also wielded its amateurism principle outside of the courtroom to limit NCAA athlete compensation. In 2013, while defending the O’Bannon and Keller cases, the NCAA opted not to renew its contract with EA to produce the NCAA Football and NCAA Basketball video games. Citing “. . . the current business climate and costs of litigation,” the NCAA’s decision made NCAA Football 2014 the last video game marketed with “. . . the NCAA’s name and logo.”[17] The NCAA exited its EA deal amidst a robust market for the games.[18] Despite other NCAA conferences and member institutions entering into deals with EA after the NCAA’s departure, the NCAA’s non-renewal caused the demise of EA’s NCAA franchise. EA canceled the series two months after the NCAA’s non-renewal.[19] These actions signal how, if left unchecked, the NCAA could thwart the legislative intent of NIL bills.
The plain language of states’ NCAA athlete NIL bills makes clear the legislative intent to allow NCAA athletes to profit from their NILs largely unfettered.[20] While NCAA athletes are prohibited from entering into contracts in conflict with their university, the laws give NCAA athletes wide latitude in securing and profiting from endorsements.[21] The presence of few impediments signals a legislative intent to provide NCAA athletes the greatest opportunity to benefit financially during the short windows of their athletic careers.[22] For many NCAA athletes, the timeline to generate income from their athleticism lies squarely during their intercollegiate careers.[23] Thus, NIL legislation must limit restrictions against how NCAA athletes contract around their NIL rights.
In that regard, one area wherein legislators must clearly carve out a right for NCAA athletes to profit is group licensing.[24] Most American professional team sport athletes are parties to group licensing contracts executed through their union or a separate organization assigned by the union to oversee group licensing.[25] Under group licensing endorsement contracts, athletes retain the right to enter into individual NIL endorsement contracts.[26] However, some companies, like video game producers, trading card companies and even figurine creators, must contract with more than one athlete in a respective league to create their product.[27] Rather than secure licenses to athletes’ NIL rights individually, it is more efficient for these companies to secure group licenses. Athletes benefit from group licensing because, as a collective, they utilize leverage to secure higher endorsement valuations.[28] In fact, for many NCAA athletes, group licensing presents the greatest opportunity to generate the highest NIL income.[29] This is especially true for women’s sport athletes, as group licensing has helped increase women’s professional sport athletes’ income.[30] That group licensing provides access to NIL income for all athletes—regardless of their respective star power or visibility of sport—signals that Congress must codify the right of NCAA athletes to enter into group licensing deals into future NIL bills.
Further, Congress must ensure that NCAA athletes can organize to effectuate such deals. The NCAA has filled its coffers to the brim with revenue generated from television and marketing contracts made possible by a product produced through the labor of NCAA athletes.[31] Yet, when presented a similar opportunity to increase the earnings of NCAA athletes, it exited the market altogether.[32] In 2013, the NCAA could have avoided time consuming and exorbitantly expensive litigation by negotiating a settlement granting NCAA athletes the ability to profit from their NIL.[33] Instead, the NCAA stuck to its definition of amateurism, ignored a burgeoning video game market, exited a decade-long video game partnership and moved forward through trial racking up millions in legal fees.[34] Now, the NCAA is doubling down on its unwillingness to help the athletes whose labor has generated billions of dollars in revenue for the organization get a piece of the pie by considering banning them from entering group licensing deals.[35] To secure this proposed ban, the NCAA has gone as far as lobbying Congress for a federal antitrust exemption.”[36] Not only is the NCAA unwilling to act as an agent who will secure optimal group licensing deals for NCAA athletes, it is committed to thwarting such deals in the name of “amateurism.”
Thus, any NCAA athlete NIL bill must also codify NCAA athletes’ right to organize.[37] Given the NCAA’s past refusal to negotiate group licensing deals for NCAA athletes and the history of other leagues and governing bodies not proactively seeking group licensing deals for athletes, NCAA athletes must be allowed to form trade associations to actually procure the benefit of their NIL rights.[38]
The enactment of NCAA NIL bills signals a willingness by legislatures to do what the courts couldn’t and the NCAA refuses to: Provide NCAA athletes access to revenue produced by the multi-billion dollar revenue generating industry their labor built.[39] Congress should call the NCAA on its amateurism bluff and allow NCAA athletes to fairly enter the endorsement marketplace, which lines the pockets of others with millions, to adequately capitalize on their athleticism.[40]
[1] Governor Newsom Signs SB 206, Taking on Long-Standing Power Imbalance in College Sports, Office of Governor Gavin Newsom (Sept. 30, 2019), https://perma.cc/YJA9-Q7TD; see also Gavin Newsom Signs California’s ‘Fair Pay to Play Act’ with LeBron James & Mav Carter | THE SHOP https://www.youtube.com/watch?v=7bfBgjxVgTw&feature=youtu.be at 1:19 (signing the bill, Newsom said, “They’re a little panicked, because they recognize they’re vulnerable. People are hitting this, not just in California, but all across the country, because the gig’s up. Billions and billions of dollars—$14 billion dollars goes to these universities, goes to these colleges, a billion-plus revenue to the NCAA themselves, and the actual product—the folks that are putting their lives on the line, putting everything on the line—are getting nothing. You can only imagine how they’re responding to this notion of name, image and likeness, and the opportunity now to do what every other student in the university can legally do. It is the interesting [inaudible] that the only people who sign away their right—the only group that signs away the right—are athletes”).[2] Compensation; Student participation in intercollegiate athletics, Cal. Ed. Code § 67456 (2020).
[3] See Alicia Jessop, ‘Looking into the NCAA’s Model, I Saw it Was Egregious’: Athlete Compensation Has Become a Bipartisan Matter, The Athletic (Oct. 1, 2019), https://perma.cc/9R6E-WRH7 (discussing legislation proposed by Republican U.S. Congressman Mark Walker, which would allow NCAA athletes to profit off of their NIL rights); Dan Wolken, Opinion: As Congress Debates Merits of Athletes Profiting, Hardly Anyone is Buying What NCAA is Selling, USA Today (July 22, 2020), https://perma.cc/K8Z2-F753 (detailing a Congressional hearing on NCAA athlete NIL legislation); Ross Dellenger, NCAA Presents Congress with Bold Proposal for NIL Legislation, SI.com (July 31, 2020), https://perma.cc/Z6C7-3L88 (highlighting the NCAA’s request for federal legislation around NCAA athlete NIL rights and creation of an NCAA antitrust exemption); Ross Dellenger, Proposed NCAA NIL Legislation is a Restrictive First Step for Student-Athletes, SI.com (July 17, 2020), https://perma.cc/V5WW-KTUL (covering the restrictive nature of the Power 5 conferences’ proposed federal NIL legislation); Dan Murphy, U.S. Senators Lay Out Framework for Future College Sports Legislation, ESPN (Aug. 13, 2020), https://perma.cc/CXH3-YZ8N (highlighting a legislative framework developed by Democratic Senators, Cory Booker and Richard Blumenthal, which along with setting forth proposed NCAA athlete education, health and safety measures, addresses NCAA athlete NIL rights); Steve Berkowitz, Colorado Governor Signs College Athlete Name, Image and Likeness Bill, USA Today (Mar. 20, 2020), https://perma.cc/G2MQ-ZCGL (highlighting an NCAA athlete NIL bill signed by Colorado Governor Jared Polis that will go into effect on January 1, 2023); Dan Murphy, Florida Name, Image, Likeness Bill Now a Law; State Athletes Can Profit From Endorsements Next Summer, ESPN (June 12, 2020), https://perma.cc/K9GM-QR52 (covering an NCAA athlete NIL bill signed by Florida Governor Ron DeSantis that will go into effect on July 1, 2021).
[4] See Cal Griffin, Where Are They Now: The O’Bannon Brothers, All Things Hoops (Feb. 9, 2018), https://perma.cc/3WSM-CXJ2 (providing a basic biography of Ed O’Bannon).
[5] O’Bannon v. NCAA, 802 F.3d 1049, 1055 (9th Cir. 2015).
[6] Id.
[7] Id.
[8] Id. at 1052; see generally Alston v. NCAA, 958 F.3d 1239 (9th Cir. 2020); Keller v. Elec. Arts Inc., 724 F.3d 1268 (9th Cir. 2013); About Us, Collegiate Licensing Company, https://perma.cc/JYF7-ZRWB (explaining that the Collegiate Licensing Company is responsible for the birth and growth of the intercollegiate sport licensing market. Now operating as a subsidiary of Learfield/IMG College, “[t]he Collegiate Licensing Company was founded in 1981 by Bill Battle after he signed legendary coach Paul “Bear” Bryant to a licensing agreement. . . Battle discovered that The University of Alabama did not have a licensing program. Alabama soon signed on as the first university client. Eight other schools quickly followed, and an industry was born.” The Collegiate Licensing Company brokered the deal between the NCAA and EA to develop a series of video games centered around NCAA sports).
[9] See O’Bannon v. NCAA at 1079 (reaffirming the lower court’s holding that the NCAA is subject to the Sherman Antitrust Act and “[t]he Rule of Reason requires that the NCAA permit its schools to provide up to the cost of attendance to their student athletes,” but vacating the district court’s ruling “. . . require[ing] the NCAA to allow its member schools to pay student-athletes up to $5,000 per year in deferred compensation” generated from licensing NCAA athletes’ name, image and likeness through broadcast television and other endeavors); Alston v. NCAA at 1265 (affirming the district court’s ruling “. . . that NCAA limits on education-related benefits” violate the Sherman Antitrust Act).
[10] See Ahiza Garcia, NCAA Surpasses $1 Billion in Revenue for First Time, CNN.com, https://perma.cc/E3TP-4K92 (March 7, 2018) (noting that in 2018, the NCAA topped $1 billion in annual revenue for the first time in its 100-plus-year history); Chris Murphy, Madness, Inc.: How Everyone is Getting Rich off College Sports—Except the Players, Senator Chris Murphy, https://perma.cc/B5MN-8HF7 (2019) (highlighting that NCAA member institutions generated $14 billion in revenue through intercollegiate athletics in the preceding fiscal year); Steve Berkowitz, Power Five Conferences Had Over $2.9 Billion in Revenue in Fiscal 2019, New Tax Records Show, USA Today (July 10, 2020), https://perma.cc/Z7XJ-BGT7 (referencing that the five largest conference members of the NCAA generated nearly $3 billion in 2019. Notably, this revenue does not account for the revenue the conferences’ member institutions generated individually); John Wall Street, Landmark Deal Gives Merchandising/Licensing Distributor +/- 95% of the U.S. College Marketplace, SI.com, https://perma.cc/TY42-64AA (Jan. 17, 2020) (asserting that as of 2020, the valuation of the collegiate licensing retail space alone was $4.6 billion); Michael Smith & John Ourand, Learfield, IMG College Close Merger, Reshaping College Sports Business Space, The Business Journals (Sept. 19, 2017), https://perma.cc/H44P-L85N (discussing the 2017 merger between Learfield and IMG College. Operating in the intercollegiate sports licensing space, the merger led to a valuation of $2 billion for the resulting company).
[11] What is the NCAA?, NCAA.org, https://perma.cc/DHG4-U7Z8.
[12] See Division I Committees, NCAA.org, https://perma.cc/62RK-77SX.
[13] See NCAA, 2020-21 NCAA Division I Manual, NCAA.org (Aug. 1, 2020), https://perma.cc/9S49-BZVJ.
[14] Id. at 3.
[15] See O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015) (defending the O’Bannon case, the NCAA asserted that its amateurism rules have procompetitive effects under the Sherman Antitrust Act’s Rule of Reason).
[16] See id. at 1053 (holding that the NCAA’s amateurism rules “. . . are not exempt from antitrust scrutiny,” to affirm the district court’s relief of full cost of attendance scholarships, yet disallowed compensating NCAA athletes “ . . . up to $5,000 per year. . .”); E. Woodrow Eckard, Does the NCAA’s Collegiate Model Promote Competitive Balance? Power-5 Conference Football Versus the NFL, 20 J. of Sports. Econ. 654 (2019) (showcasing that while the NCAA proffers amateurism as necessary to attaining the desired result of competitive balance, debate exists over whether competitive balance actually exists in the NCAA, especially amongst the most visible and lucrative conferences in FBS Division I, better known as the “Power 5” conferences. In this article, the scholar—an economist—calculated “[e]ight different albeit competitive balance metrics” to find not only that “the NFL’s competitive balance is not less than that of the Power-5 teams,” but that the NFL had better competitive balance in seven of the eight metrics).
[17] NCAA, NCAA Will Not Renew EA Sports Contract, NCAA.org (July 17, 2013), https://perma.cc/JSA2-6YH9
[18] Brent Schrotenboer, EA Sports Re-ups on College Football After NCAA Snub, USA Today (July 19, 2013), https://perma.cc/7XQX-38B8 (noting that days after the NCAA’s announcement, “[M]ore than 150 colleges, conferences and bowl games. . . approved a three-year contract extension with EA Sports that will continue production of the company’s college football video game despite the ongoing legal controversy surrounding it).
[19] See Tony Manfred, EA Sports Cancels Its College Football Video Game Amid a Wave of Lawsuits, Business Insider (Sept. 26, 2013), https://perma.cc/32NW-RFLY (announcing cancellation of the EA NCAA franchise, EA wrote in part, “We have been stuck in the middle of a dispute between the NCAA and student-athletes who seek compensation for playing college football. Just like companies that broadcast college games and those that provide equipment and apparel, we follow rules that are set by the NCAA—but those rules are being challenged by some student-athletes. For our part, we are working to settle the lawsuits with the student-athletes. Meanwhile, the NCAA and a number of conferences have withdrawn their support of our game. The ongoing legal issues combined with increased questions surrounding schools and conferences have left us in a difficult position—one that challenges our ability to deliver an authentic sports experience, which is the very foundation of EA SPORTS games”).
[20] See Compensation; Student participation in intercollegiate athletics, Cal. Ed. Code § 67456 (a) (1) (2020) (specifying, “A postsecondary educational institution shall not uphold any rule, requirement, standard, or other limitation that prevents a student of that institution participating in intercollegiate athletics from earning compensation as a result of the use of the student’s name, image, or likeness. Earning compensation from the use of a student’s name, image or likeness shall not affect the student’s scholarship eligibility.”); Intercollegiate athlete compensation and rights, Fla. Stat. § 1006.74 (2020) (providing, “. . . participation in intercollegiate athletics should not infringe upon an intercollegiate athlete’s ability to earn compensation for her or his name, image, or likeness. An intercollegiate athlete must have an equal opportunity to control and profit from the commercial use of her or his name, image, or likeness, and be protected from unauthorized appropriation and commercial exploitation of her or his right to publicity, including her or his name, image, or likeness.”); Compensation and representation of student athletes at institutions of higher education; prohibited acts; contracts; definitions, Colo. Rev. Stat. § 23-16-301 (2020) (legislating that, “An athletic association shall not: Prevent a student athlete from earning compensation from the use of the student athlete’s name, image, or likeness.”).
[21] Id.
[22] See Collegiate Athletics: Fair Pay to Play Act: Hearing on SB 206 Before the Cal. S. Assembly Committee on Arts, Entertainment, Sports, Tourism, and Internet Media (2020) (comments of Nancy Skinner, California state senator and bill author) (arguing, “Student athletes need to financially strike while the iron is hot and draw compensation for their performance in collegiate athletics. It is only fair because it is the athletes who are the draw in these hugely profitable activities.”).
[23] See Collegiate Athletics: Fair Pay to Play Act: Hearing on SB 206 Before the Cal. S. Assembly Committee on Arts, Entertainment, Sports, Tourism, and Internet Media (2020) (comments of bill supporters) (noting that The California-Hawaii State Conference of the NAACP supported the Fair Pay to Play Act “. . . based on their belief that, ‘For many athletes, college is the only time they may profit from their participation in sports.’” Further, California Fair Pay to Play Act cosponsor, the Alliance for Boys and Men of Color asserted, “University studies have found that athletes are spending 32 to 44 hours a week on their respective sports. The time commitment athletes dedicate make it practically impossible for athletes to obtain outside employment to provide for themselves or families. . . Universities and the [NCAA] currently make huge amounts of money from TV deals and corporate sponsorships of their athletic teams, often profiting from young athletes who do not receive compensation for their hard work. This exploitation disproportionately affects students of color and students from low-income families. [The Fair Pay to Play Act] will give young athletes the dignity of a fair wage.”); NCAA, Women’s Basketball: Probability of Competing Beyond High School, NCAA.org, https://perma.cc/7SV6-F43E (April 20, 2020) (finding that across all three NCAA divisions, only 0.8% of NCAA women’s basketball players make the WNBA); NCAA, Men’s Basketball: Probability of Competing Beyond High School, NCAA.org, https://perma.cc/8B5T-J69B (April 20, 2020) (finding that across all three NCAA divisions, only 1.2% of NCAA men’s basketball players make the NBA); NCAA, Football: Probability of Competing Beyond High School, NCAA.org, https://perma.cc/H4SY-5HT5 (April 20, 2020) (finding that across all three NCAA divisions, only 1.6% of NCAA football players make the NFL).
[24] See NCAA, NCAA Board of Governors Federal and State Legislation Working Group Final Report and Recommendations, NCAA.org, https://perma.cc/JK6Z-DC7F (April 17, 2020) (depicting that the NCAA appears to not support the right of NCAA athletes to enter into group licensing endorsement contracts, as it argues, “At this time, the working group is also not recommending any changes to NCAA rules to permit group licenses of student-athlete NIL in what are characterized as group products (like video games). There are legal hurdles to such activity that preclude it as a realistic option for implementation at this time.” Notably, the legal hurdle the NCAA refers to is the ability of NCAA athletes to unionize and negotiate group licensing deals through organized representation).
[25] See Major League Players Association, MLB Players, Inc., MLBPA, https://perma.cc/UEQ2-Z9KA (detailing the operation of the MLBPA’s group licensing program); NFLPA, Licensing, NFLPA, https://perma.cc/339G-T3KG (highlighting the NFLPA’s group licensing program).
[26] See J. Gordon Hylton, The Major League Baseball Players Association and the Ownership of Sports Statistics: The Untold Story of Round One, 17 Marquette Sports L. Rev. 87, 91-92 (noting that when MLB players created the first group licensing program, players maintained their individual rights of publicity).
[27] See Alicia Jessop, How NFL Players Are Helping the USWNT in its Fight for Higher Pay, The Athletic, https://perma.cc/BDT8-9USN (June 17, 2019) (highlighting the increased number of endorsement deals members of the World Cup champion and Olympic gold medal winning USWNT secured after reclaiming their group licensing rights from U.S. Soccer. Included in these group endorsement deals were figurines).
[28] See Knight Commission on Intercollegiate Athletics, NIL FAQS: Group Licensing, Knight Commission on Intercollegiate Athletics, https://perma.cc/4Y8H-ES5M (discussing the efficiency promoted through group licensing deals).
[29] See AJ Maestas & Jason Belzer, How Much Is NIL Worth To Student Athletes, Athletic Director U, https://perma.cc/ZHJ5-PD9X (identifying an “annual NIL value per student-athlete” of $1,000 to $10,000 through group licensing deals, compared to the upwards of $700,000 premier NCAA athletes could earn through social media endorsements versus the $5,000 to $30,000 that could be garnered by “less popular” NCAA athletes); Tim Stephens, NIL Valuation: How Much Are Duke MBB Players’ Name, Image, Likeness Worth?, Inflcr, https://perma.cc/KK6X-88VF (May 20, 2020) (asserting Duke University’s top men’s basketball player could garner $15,000 per Instagram post, while the team’s player with the least amount of players could likely only secure $400 per post).
[30] Jessop, supra note 27; Ben Fischer, LA28, USPOC Considering Group Athlete Licensing, Sports Bus. J., https://perma.cc/L4M5-SZBS (Aug. 5, 2019) (noting that the Los Angeles Olympic Organizing Committee and “ . . . U.S. Olympic & Paralympic Committee are considering group licensing for Olympic athletes for the first time” to “. . . provide a new revenue stream for athletes, particularly those who don’t receive personal endorsement deals. . .”).
[31] See Crowe LLP, Independent Auditor’s Report, NCAA.org, https://perma.cc/P7JH-W9SQ (Dec. 18, 2019) (reporting revenue for the NCAA for the year ending August 31, 2019 of $1.12 billion, which included $867.5 million in television and marketing rights fees): NCAA, Where Does the Money Go?, NCAA.org, https://perma.cc/URV7-8WM3 (explaining that a majority of the revenue generated by the NCAA is distributed to NCAA member institutes. The NCAA shares $100 million with universities to “. . . support student-athletes’ academic pursuits and assist them with the basic needs of college life. . .”).
[33] See Jon Solomon, NCAA Ordered to Pay $46 Million in Ed O’Bannon Legal Fees, CBSSports (July 13, 2015), https://perma.cc/52MW-6PU4 (discussing that after the district court ruled in favor of O’Bannon, the NCAA was ordered to pay the $46 million in legal fees the car salesman accumulated in bringing the antitrust litigation against the governing body); Rick Seltzer, NCAA Lawyers Up, Inside Higher Ed (July 16, 2019), https://perma.cc/4MN3-YYBT (highlighting that outside of the legal fees the NCAA was ordered to pay in the O’Bannon case, it is reported that between August 2015 and August 2019, the NCAA’s third-party legal expenses more than doubled from $25 million to $54 million).
[34] See Kevin Webb, The $120 Billion Gaming Industry is Going Through More Change Than it Ever Has Before, and Everyone is Trying to Cash in, Business Insider, https://perma.cc/9HWW-KDY5 (Oct. 1, 2019) (noting that the video game industry is expected to reach revenues of $196 billion by 2022. Yet, the NCAA, whose revenues have skyrocketed in recent years, has shown an absolute unwillingness to re-enter the market, simply because doing so would require recognizing NCAA athletes’ NIL rights and extending them the ability to enter into group licensing deals).
[35] See NCAA Board of Governors Federal and State Legislation Working Group, NCAA Board of Governors Federal and State Legislation Working Group Final Report and Recommendations, NCAA.org (April 17, 2020), https://perma.cc/F22M-VV6R (showcasing the NCAA Division I Board of Governors’ continued refusal to “. . . permit group licenses of student-athlete NIL in what are characterized as group products (like video games).”); NCAA, Board of Governors Moves Toward Allowing Student-Athlete Compensation for Endorsements and Promotions, NCAA.org (April 29, 2020), https://perma.cc/T7PJ-4QDV.
[36] Protecting the Integrity of College Athletics, Hearing Before the Comm. on the Judiciary, 116th Cong. (2020) (statement of Mark Emmert, Pres. NCAA).
[37] See Amber Jorgensen, Esq., Why Collegiate Athletes Could Have The NCAA, Et Al. Singing A Different Tune, 33 Cardozo Arts & Ent. L.J. 367, 391 (2015) (asserting, “[i]n the absence of a labor union, current and former college athletes could join an organization to negotiate, manage, administer and enforce their group licensing rights specifically with respect to the NCAA and their college teams.”).
[38] See Alicia Jessop, Inside the Looming Battle Between the NFLPA and NCAA for College Athletes’ Name, Image and Likeness Rights, The Athletic, https://perma.cc/7AGW-5KDC (Oct. 30, 2019) (highlighting the issues in leagues and governing bodies representing athletes in group licensing deals: “The problem is leagues and governing bodies have mixed motives. . . Instead of having a diligent focus on the athletes, you have this mixture of focus that includes the teams’ and league’s marks and it becomes a one-stop shop. When you do that, it shortchanges someone and the leagues and governing bodies aren’t going to short change themselves. What’s happened over the years is athletes haven’t gotten their fair share as these industries have exploded.”); Alicia Jessop, How NFL Players are Helping the USWNT in its Fight for Equal Pay, The Athletic, https://perma.cc/TN5E-9LXZ (June 17, 2019) (discussing the increased value athletes can obtain from group licensing deals after reclaiming group licensing rights from leagues and organizing bodies, NFL Players Inc.’s vice president of licensing and business development, Steve Scebelo said, “The USWNT Players Association and WNBA Players Association had previously been represented in licensing by their league or federation counterparts, which don’t always represent the players’ interests in licensing in the best fashion. . . Both had been told that there weren’t licensing opportunities for them.” Despite reportedly being told by U.S. Soccer that there “weren’t licensing opportunities for them,” the USWNT secured 19 group licensing deals after signing with an outside entity to manage their group licensing rights).
[39] See Alicia Jessop, Power 5 Football Players Want to Play. But Can They Unionize? The Athletic, https://perma.cc/GF6X-NPGH (Aug. 10, 2020) (discussing the unlikelihood that NCAA athletes would be able to unionize as a collective group under the National Labor Relations Act, due to many competing at public universities); Michael McCann, College Athletes Union Faces Hurdles Beyond #WeAreUnited And #WeWantToPlay, Sportico, https://perma.cc/A25H-SSK7 (Aug. 10, 2020) (explaining how a trade association could be utilized to secure group licensing endorsement contracts for NCAA athletes).
[40] See Alaa Abdeldaiem, Report: Mark Emmert Received 60% Raise in ’17, Made $3.9M Amid College Hoops Scandal, SI.com, https://perma.cc/6WDN-X38F (May 24, 2019) (explaining that despite the NCAA being embroiled in an FBI and Department of Justice investigation into an alleged “pay for play” scandal in Division I men’s basketball, which questioned the credence and effectuation of the NCAA’s amateurism standard, NCAA president Mark Emmert received a 60% year-over-year raise to receive $3.9 million in salary in 2017); Dana O’Neil, Mark Emmert Rips NCAA Unionization, ESPN, https://perma.cc/2LCH-LABV (April 6, 2014) (showcasing that despite earning millions through revenue generated through the labor of NCAA football players, Emmert called NCAA football players’ unionization attempt, “grossly inappropriate.”); NCAA Salaries, USA Today, https://perma.cc/Q398-65UH (explaining that in 2019, Clemson University head football coach, Dabo Swinney, was the highest paid NCAA football coach, raking in a total annual salary of $9,315,600); Mark Heim, Clemson Coach Dabo Swinney on College Football Union: ‘We’ve Got Enough Entitlement in this Country,’ AL.com, https://perma.cc/38U4-QMB4 (Mar. 27, 2014) (depicting Swinney’s historical reference to unionization attempts by NCAA football players as “entitlement”); NCAA Salaries, USA Today, https://perma.cc/9DAQ-A84F (showing that in 2020, University of Kentucky men’s basketball coach, John Calipari, is the highest paid NCAA men’s basketball coach, earning $8,158,000 per year).