(What follows was recently published by the Drake Group in response to the NCAA’s movement this week toward compensating student athletes in specific circumstances.)
On October 29, 2019, the NCAA Board of Governors voted unanimously to permit college athletes to commercialize the use of their names, images and likenesses (NILs) “in a manner consistent with the collegiate model.” B. David Ridpath, Ph.D., president of
The Drake Group, issued the following statement:
“We applaud and are cautiously encouraged by the NCAA Board of Governors adoption of the following principles and guidelines that undergirded its decision to allow college athletes the freedom to exploit their own NILs and pursue employment opportunities previously denied:
- Assure student-athletes are treated similarly to non-athlete students unless a compelling reason exists to differentiate.
- Maintain the priorities of education and the collegiate experience to provide opportunities for student-athlete success.
- Ensure rules are transparent, focused and enforceable and facilitate fair and balanced competition.
- Make clear the distinction between collegiate and professional opportunities.
- Make clear that compensation for athletics performance or participation is impermissible.
- Reaffirm that student-athletes are students first and not employees of the university.
- Enhance principles of diversity, inclusion and gender equity.
- Protect the recruiting environment and prohibit inducements to select, remain at, or transfer to a specific institution.
However, this statement of principles is NOT legislation and everyone should recognize that ‘the devil is in the detail.’ In the past, there have been huge disconnects between the NCAA stated principles and legislation and the term of art ‘collegiate model’ is not defined and is a constant moving goalpost.
For example, the NCAA has a principle stating that it is the responsibility of its member institutions to comply with federal laws like Title IX (gender equity). However, there is no legislation in the NCAA Manual that requires Title IX compliance as a condition of membership or access to post-season play. There is a NCAA principle stating “Intercollegiate athletics programs shall be conducted in a manner designed to protect and enhance the physical and educational well-being of student-athletes.” Yet, there is little if any legislation requiring NCAA member institutions to adopt best practices delineated in the NCAA Sports Medicine Handbook or to address academic fraud such as the recent University of North Carolina 18-year debacle of fake classes. Given the fact that the NCAA has regularly changed its definition of “amateurism” to fit the best economic interest of its members while continuing to exploit the individual rights of college athletes, we receive this promise of change with great caution.”
The Drake Group recently issued a comprehensive statement on how to implement a system which fairly balances institutional and college athlete NIL rights: Compensation of College Athletes Including Revenues Earned from Commercial Use of Their Names, Images and Likenesses and Outside Employment. We hope that college athletes can benefit from this or a similar system imposed by Congress. The Drake Group continues to believe that only Congress can play the role of unbiased referee in designing a system that fairly balances institutional and college athlete interests and only Congress can provide a limited antitrust exemption that may be required to ensure that educationally sound NIL standards are not undermined by antitrust litigation. We strongly believe Congressional intervention is warranted because the NCAA has consistently placed its members’ institutional interests above athletes’ interests. We believe Congress is in a better position to protect the academic, health and economic welfare of college athletes.
Ridpath also cautioned, “This one as yet unfulfilled NCAA promise of future fairness related to the economic treatment of college athletes should not deter Congress from undertaking a long overdue comprehensive examination of the need for extensive NCAA reform. There are huge issues that continue to be unaddressed by the NCAA such as:
- An unsustainable intercollegiate athletics economic system that results in the growth of non-athlete student debt from mandatory student fees and tuition increases affected by institutional subsidies of athletics.
- The unprecedented escalation of collegiate head and assistant coach and athletic director salaries inappropriate for tax-exemption institutions of higher education.
- A Division I recruiting arms race building spree on lavish athlete-only facilities that further isolates athletes from the rest of student body and a normal college educational experience.
- Academic fraud and other academic improprieties within athletic departments including extensive recruiting of underprepared athletes who do not meet published institutional admissions standards, practices that threaten the academic integrity of institutions of higher education.
- Athletic departments and the NCAA not using their power and financial resources to address the health, medical and safety needs of college athletes.
Regular athletics scandals continue to blight the reputations of the country’s most respected institutions of higher education. The Congress that provides $130 billion in annual higher education funding including $29 billion in Federal Pell Grants has a responsibility to investigate these issues.”
 NCAA Division I 2019-20 Manual, p. 3, Sec. 2.3.
 Ibid, Sec. 2.2
 Sara Ganim and Devon Sayers, UNC report finds 18 years of academic fraud to keep athletes playing. CNN (October 23, 2014). Retrieve at: https://www.cnn.com/2014/10/22/us/unc-report-academic-fraud/index.html
 Wendell Barnhouse. NCAA rulings on amateurism called ‘absurd,’ ‘inconsistent’ Global Sport Matters. Arizona State University. (May 22, 2018) Retrieve at: https://globalsportmatters.com/business/2018/05/22/ncaa-rulings-amateurism-absurd-inconsistent/