Month: October 2020

IP Empowerment for All

– Howard University School of Law’s Intellectual Property Student Association

THE PROBLEM

“In a system where billions of dollars are generated in part due to the athletic success of student-athletes, the restrictions on non-game related NIL deals do not prevent exploitation— they are exploitative.” –  Professor Gabe Feldman, Tulane Law School; Director, Tulane Sports Law Program; Associate Provost for NCAA Compliance

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While O’Bannon’s decision and the subsequent law changes in California and Florida is great progress around name, image, and likeness (“NIL”) as it pertains to the NCAA and student athletes, it has also created some other issues.

Uniformity is one of those issues. With the absence of  federal legislation covering NIL standards for college athletes, California’s Fair Pay to Play Act has in essence created a “venue shopping” system where student athletes can choose a school to attend simply because it’s located in a state with more favorable NIL laws. In addition, large amounts of conflicting legislation can lead to mass confusion.

The other issue is that, in other states, students are dealing with the traditional harms of student athletes in the market for non-game NIL payments:

• Student athletes—just as other students—have property rights in their name, image and likeness. Many student athletes have created tremendous value in their NILs and, absent NCAA restrictions, would receive significant compensation for them in an open market. These men and women—often from socio-economically disadvantaged families—are deprived of the economic benefit the market would pay for their property.
• Some student athletes will actually have the most value to their NIL while they are in school. For example, some athletes are injured prior to professional drafts. Therefore, the NCAA’s policy prevents those athletes from properly capitalizing off of their image when it is most beneficial for them to do so.
• But most importantly, the stripping of an innate, legal right in consideration for the ability to play a sport (without any education about its existence) leaves the athletes less inclined to know how to properly use and commercialize their IP in the future.

 THE MISCONCEPTION

One of the most common complaints against “Fair Pay to Play” is the argument that athletes do not deserve to be paid for playing a sport. This usually comes from people with little understanding of NIL or the NCAA’s policy, and rests solely on the literal meaning of the phrase.

But it’s important not to confuse third-party NIL compensation with other types of compensation. Most importantly, the NCAA is not contemplating changes that would allow colleges to pay college athletes. The Board of Governors remains fiercely opposed to “pay for play” and other forms of university-to-athlete compensation outside of the grant-in-aid (tuition, fees, room and board, required course-related books etc.). Third-party compensation for NIL is also not compensation for the underlying labor of playing a sport. No college will be allowed to pay their athletes for their NIL or their labor. The legislation would merely allow for student athletes to have the same NIL rights as every other student-creator.

THE SOLUTION

Howard University School of Law’s Intellectual Property Student Association (“IPSA”) has held a long-standing devotion to the application of social justice in the area of IP. It naturally follows that we would like to support a federal bill that would give college athletes the opportunity to profit off of their image and likeness that they have worked hard to curate.

Currently IPSA and our IP Empowerment For All subcommittee is in the process of updating research on current legislative proposals regarding NIL. This research will be imputed into a one-pager that more thoroughly addresses the need for particular federal legislation in this area. Then, we can utilize the paper as a tool to persuade our peers and colleagues to sign a petition in support of the proposal. While the NCAA’s proposal to Congress is effective in addressing uniformity, the language of the proposal is still very restrictive for student athletes.

As a result, we are working diligently to ensure that the proposed bill we choose to endorse and share addresses concerns across our communities and reflects our mission of social justice.

We are confident that armed with the correct information, many people will see that this proposal is long overdue. Please continue to check this space for our selected proposal and link to our petition!