NCAA Delays College Athlete Vote

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NCAA Delays College Athlete Vote

Jan 27, 2021

Our fourth minisode of the fourth season of “The Creative Influencer” podcast is available today for download on iTunes, Spotify, and premier platforms everywhere. In minisodes, we answer questions that our listeners have emailed Jon. In this minisode, Jon discusses the NCAA’s decision to delay the vote to allow student athletes to profit from their name, image and likeness and where we go from here.


A transcript of the episode follows:

This is our fourth minisode of season four.

I had planned for this minisode to be about the NCAA’s vote to allow student athletes to profit from their name, image and likeness. Instead, we are going to talk about the NCAA’s decision to delay the vote and where we go from here.

Let me set the scene.

The NCAA currently prohibits student athletes from making money while they are in college. For example, Zion Williamson was prohibited from being in paid for advertisements and commercials during his one year at Duke. In his first year in the NBA, it is estimated that Williamson made $20 million in endorsement deals.

Trevor Lawrence, Clemson’s star quarterback, was prohibited by NCAA rules from making money from his name, image and likeness. It was estimated that he could have made over $1 million dollars in his three years at Clemson.

Many states don’t think this is fair.

Olivia Jade, for example, didn’t even want to be at USC but she was allowed to make money from her name, image and likeness. Non-athletes don’t have to follow the same rules as athletes. In know, I know, insert joke here about Olivia Jade being on the crew team.

In 2019 California passed the “Fair Pay to Play Act.” It permits college athletes to make money from their name, image and likeness. Several other states have followed suit and passed so-called NIL laws.

This put the NCAA in a pickle.

In response, they formed a “working group” to study the issue. In April of 2020 the working group issued a 31-page final report. There were recommendations to allow student athletes the right to make money from their name, image and likeness.

The NCAA was scheduled to vote on the recommendations this month. However, at its virtual convention two weeks ago, the Presidents Council voted to withdraw the NIL proposal.

What’s going on?

The NCAA said in a statement:

… the responsible and prudent response is for the division to postpone a vote until such time that the NCAA can gather additional relevant information about the potential impact of the various external concerns currently surfacing around this issue.

Okay, what does that mean?

Before the scheduled vote, the United States Department of Justice sent a letter to the NCAA warning of potential antitrust violations. The letter said:

Pursuing a goal of promoting amateurism does not insulate the NCAA’s rules from scrutiny under the antitrust laws. … The antitrust laws limit the NCAA’s ability to restrict competition among college athletes, coaches, and schools. For example, if the NCAA adopted a rule that fixes the price at which students can license their NIL, e.g., based on what the NCAA determines to be a “fair” market value, such a rule may raise concerns under the antitrust laws.

I ask again, what does that mean?

It means that the new rules might violate federal antitrust law because of the restrictions it puts on an athlete’s ability to access the free market. In this case, the free market means YouTube, Twitter and Instagram.

The United States Supreme Court has a case before it now – the Alston case. It deals with the NCAA and antitrust.

We’ll discuss the Alston case and what could happen to the NCAA rules in our next minisode.

The Creative Influencer is a bi-weekly podcast where we discuss all things creative with an emphasis on Influencers. It is hosted by Jon Pfeiffer, an entertainment attorney in Santa Monica, California.  Jon interviews influencers, creatives and the professionals who work with them.

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