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College Athletes Can’t Profit On Their Own Image, But The NCAA Can

Jeremy Bernfeld

The NCAA makes billions of dollars selling the rights to televise games and selling merchandise and jerseys. But a spate of court cases making their way through the judicial system could put those billions in jeopardy.

A group of current and former athletes is suing the NCAA in federal court – they want to stop the NCAA from profiting off the likenesses of athletes. And they want athletes themselves to be eligible for a stake of that money. [See more on O’Bannon v. NCAA]

The case is scheduled to go to trial in early June, though the NCAA has asked for a delay. At its heart, it’s about who controls an athlete’s name and image. Because right now, the players themselves can’t benefit from their own photo. They’re not allowed to work as a model, to act in most commercial films, or to put their own picture on flyers for a business they own.

In order to be eligible for NCAA competition, athletes have to sign what’s called the Student Athlete Statement. Within that document, there’s a section that grants permission for the NCAA, member schools, conferences and “a third party acting on behalf of the NCAA” to use an athlete’s name or image for promotions. It also says that the athletes themselves can’t profit from their own name or image.

By signing the Student Athlete Statement, college athletes agree to a series of NCAA rules, according to Robert Givens, a law student who recently wrote an article about what he calls the “economic exploitation of student athletes” by the NCAA in the UMKC Law Review. Athletes effectively transfer the right to profit off their own image to the NCAA.

“Essentially, for as long as you want to play for this school at the Division 1 level, you cannot make any money for anything that is directly tied to your athletic achievements,” Givens said. “And any other scenario that involves using your face, your reputation, your athletic achievements in exchange to gain something of value to yourself. All of these possibilities go away with your signing this agreement.”

The NCAA wouldn’t comment on why these rules exist, but many collegiate athletes find themselves stuck against them. Because of restrictions on promotions and endorsements, the NCAA ended the college football career of Olympic skier Jeremy Bloom. Highly touted baseball recruit Aaron Adair wasn’t allowed to play in college because he used his name and image to promote an inspirational book he authored about surviving cancer (PDF).

Credit Jeremy Bernfeld / KCUR
Before each school year, college athletes have to sign the Student Athlete Statement, which allows the NCAA to use an athlete’s likeness.

  Jenny Pinkston, a former track standout at Olathe East High School and currently a heptathlete on the track team at Wichita State University, thought that she might be able to earn some walking around money by modeling for an athletic wear company. Like many college athletes, after practicing for four hours a day, working with athletic trainers, attending a full load of classes and studying, she has little time for a job. But after consulting with her coach, she was told she had to choose between modeling and competition.

“It’s very frustrating when another door opens because of your hard work and then you can’t do anything about it,” Pinkston said. “You just have to close it because of certain rules that are in place.”

She would lose her scholarship and her eligibility if she took a modeling job, despite the fact that she receives just $7,000 in scholarship money per year. And it’s highly unlikely that anyone would recognize a fairly anonymous track athlete and connect her to an NCAA track program.

Jenny Pinkston’s dad, Don Pinkston, says it’s hard to see his daughter without choices.

“Part of college is growing and learning and she’s learning about herself and what she wants to do,” Don Pinkston said. “And now she’s finding ‘Well, here’s something I’d like to do. But, oops, I can’t.’”

Jenny Pinkston finished sixth in the conference in the heptathlon. While some of her teammates are moving on to regionals, she’s done for the season. But she still has three years of NCAA eligibility remaining.

In the meantime, she’ll look for a summer job, and it won’t be modeling.

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