A Maryland perspective on the NCAA name, image and likeness debate

Before an audience of around 500 student-athletes, Maryland Athletic Director Damon Evans promised last month to help them achieve something they never had before: the right to cash in on their likeness.

“I want you guys to hear it from me that I will be one of the proponents to get the right legislation in place that will allow you to utilize your name, image, and likeness as we go forward,” he said during the opening comments of the “Maryland Cares” event on Nov. 11.

His statement came almost two weeks after the NCAA’s top governing board voted unanimously to permit student-athletes to benefit from the use of their name, image and likeness “in a manner consistent with the collegiate model.”

So why does Evans’ statement matter if the NCAA already ushered in this change on Oct. 29? Because no one is sure what the NCAA meant by that caveat — “a manner consistent with the collegiate model.”

As far as most sports and legal analysts can tell, that phrase will mean whatever the NCAA wants it to mean. So, if Evans acts as a proponent to get “the right legislation in place,” he could have an effect on what compensation for collegiate athletes will look like in practice.

How this all came about

The NCAA’s legislation resulted from external pressures. The most notable came on Sept. 30, when California Gov. Gavin Newsom signed the Fair Pay to Play Act into law. That state law empowers college athletes to negotiate contracts with third parties over the commercial use of their identities and bars the NCAA from retaliating against colleges that allow student-athletes from doing so. The law takes effect Jan. 1, 2023.

Lawmakers across the country are seeking to change the NCAA’s regulations on student-athletes’ economic opportunities. Reps. Mark Walker (R-NC) and Cedric Richmond (D-LA) proposed the Student-Athlete Equity Act, which considers stripping the NCAA’s not-for-profit status unless college athletes are authorized to benefit from their identities, back in March.

“It’s exciting that state legislatures and even Congress are beginning to take a look at this, so that student-athletes have an advocate in government that is looking out for their welfare and well-being,” said senior Ellis McKennie, a Maryland football player as well as a member of the University Senate.

The bipartisan support for this legislation shows that it was time for the NCAA to rethink its amateurism model, Evans said.

“We have to open our eyes up as administrators and as the NCAA … and understand that change is coming whether some of us like it or not,” Evans told Testudo Times. “If we’re the ones that say that we understand our business the best, then we need to figure out how to adjust and adapt to that change and put legislation in that place that’s appropriate and fair to the student-athletes.”

Since the NCAA is voluntarily changing its amateurism rules, California’s Fair Pay to Play Act will likely be null by 2023. How the NCAA will change its regulatory framework remains up for debate.

How will college athletes will be compensated?

Evans said his thoughts about how payment for players should work in practice may not be the same as what the NCAA will ultimately implement. His opinion aligns with that of the California lawmakers — that athletes should be able to secure commercial relationships without interference from their institutions or the NCAA.

Of course, Evans said, this raises some complications. For example, he said institutions will want to ensure that athletes receive fair market value for their services, so they might have to report their incomes to the institution. To that end, collegiate athletes already report regular job earnings to compliance directors.

A more complicated question, Evans said, is whether or not student-athletes should represent the institutions in their monetary pursuits. Should they wear the institution’s logos or the university’s name in brand deals? That’s yet to be decided.

The NCAA legislation that will allow student-athletes to profit from their identity won’t be decided until January 2021. By this date, the NCAA’s working group — which includes presidents, commissioners, athletic directors, administrators and student-athletes — must submit recommendations for what the new rules should be.

Changes to the NCAA’s regulations won’t happen immediately, although several major media outlets made that seem to be the case, noted Alex Kirshner, associate editor for Banner Society and former Testudo Times managing editor.

After the NCAA’s Oct. 29 vote, social media users celebrated the notion that athletes supposedly soon would be paid, but Kirshner pointed out on Twitter the process of changing amateurism rules had only just begun.

“The NCAA hasn’t done anything of consequence today, but because they worded their press release in a very specific way, media organizations are acting like the NCAA just changed the rules to let players be paid,” Kirshner tweeted.

In a phone interview, Kirshner shared some additional thoughts about what kind of regulations the NCAA might adopt in 2021.

Student-athletes’ earnings might be put into an account or trust that couldn’t be accessed until after a player was done competing in college sports, he said. Or maybe the earnings will morph into some kind of stipend that can only be spent on educational purposes.

“I suspect they’ll be pretty creative in trying to find ways to say they’re making progress without really changing much,” Kirshner said. “It’ll come down to how much legislators around the country and the courts make them do. I don’t expect that they’re going to do a lot more than they’re actually required to do.”

The case for allowing student-athletes to profit

Women’s basketball sophomore Taylor Mikesell likes to coach younger players when she goes home for the summer, but the NCAA’s current rules prohibit the 2019 Big Ten Freshman of the Year from using her name to promote her workouts.

“A lot of people go home in the summers, and they’ll run a camp, but they can’t put their name on the camp flyer,” Mikesell told Testudo Times. “Just being able to have a shooting clinic or work out with the kids publicly, I think would be really beneficial for myself and then obviously for other athletes in other sports as well.”

Sarah Sopher / Testudo Times

Evans said the reason to change these rules is relatively simple.

“You own your name, image and likeness. Why should we be prohibiting you from being able to be fairly compensated for that?” he said. “I think it’s your right.”

Kirshner agreed — and cited another important issue.

“The one area where college athletes are different than the average worker is that they are bringing in significantly more than most of us are bringing into our companies or our institutions that we work for,” he said.

The Big Ten recorded nearly $759 million in revenue during its 2018 fiscal year, according to a federal tax return provided to USA TODAY. This resulted in payments of roughly $54 million to 12 of the conference’s longest-standing members.

Maryland and Rutgers received smaller revenue-share amounts, but both schools also received loans from the conference against future revenue shares.

“It’s not like each individual player is responsible for those $50 million,” Kirshner said. “But if you did the division there and you thought about how much of the market value is driven by wanting to tune in to watch good players play and to have a certain baseline quality of the product, then players are bringing in a lot.”

Still, it’s difficult to pinpoint how much money individual student-athletes bring into their schools.

“I don’t know exactly what the fair number is because players haven’t been allowed to bargain like athletes in pro-sports, but I’m sure that it’s more than the value of a scholarship, board, training and food,” Kirshner said. “There’s no question that it’s an inequitable system, especially at the Power Five level.”

The opportunity would have benefits for all athletes, not just the ones on prime-time TV, said senior track athlete Kameron Jones, co-director of the Student-Athlete Advisory Committee.

“It’s a big opportunity for athletes in revenue sports and non-revenue sports alike,” he said. “A lot of people forget athletes could benefit off of YouTube channels or promoting a product. They might not make a bunch of money, but anything can help a student-athlete.”

How the change might affect collegiate sports

Evans called the upcoming changes to the NCAA’s amateurism model a “seismic shift in intercollegiate athletics.” He foresees plenty of opportunities for student-athletes in College Park, whether it be doing commercials for local car dealerships or signing autographs at R.J. Bentley’s.

A common concern about letting collegiate athletes benefit from their identities is that it would give some universities an unfair recruiting advantage, but Evans said such advantages are inherent across collegiate sports.

“Ohio State might have a bigger budget than we do, so that’s an advantage that they have,” he said. “In certain marketplaces, certain student-athletes are going to be able to drive more revenue for their name, image and likeness.”

Kirshner said that the change could actually give different universities the opportunity to land more high-profile recruits.

“The University of Houston is one example,” he said. “They’ve got one big billionaire donor who gives them a lot of money. Maybe it levels the playing field, if he is able to offer endorsement money, it could have the opposite effect of what people say.”

Likewise, schools in towns where the college sports teams are the chief form of entertainment might be able to offer athletes a better chance at getting an endorsement deal, and therefore gain a new recruiting incentive.

Another counterargument to letting athletes be compensated is that the opportunity will take away from the “magic of collegiate sports.”

McKennie said he doesn’t believe that will happen.

“I don’t see it diminishing the style of play,” he said. “I appreciate everything that the fans and boosters do for athletics, but we need to be worried about student-athlete welfare and student-athlete well-being more than the reaction of a few disgruntled fans when players are getting some money now.”

Since the end of the football season, two Maryland running backs have decided to forgo their remaining eligibility and declare for the NFL draft. McKennie said that even with the opportunity to benefit from their identities, athletes like Anthony McFarland Jr. and Javon Leake probably wouldn’t use all of their college eligibility.

“I don’t think with the name, image and likeness rule that it’ll be an absurd amount of money that would keep guys who know they can go to the NFL early away from doing that,” McKennie said. “If that’s the best opportunity for them, they’re going to take it.”

Sarah Sopher / Testudo Times

Is this just the first step?

Evans said he wonders if college athletes will be satisfied with benefiting from their identities, or if this change will eventually prompt them to ask to be paid by their universities.

“Does it stop there? Will student athletes want more? Is this the first step to just turning us into professional athletics?” he asked. “Then someone continues to try to move the needle towards pay for play. Those are just some thoughts, but I may not even be hitting the tip of the iceberg.”

He said he does not believe universities should pay athletes to participate in sports at their institutions.

“There’s a big difference between professional athletics and intercollegiate athletics,” Evans said. “I just fundamentally believe that. … For those student-athletes who are getting part of their school paid for or all of their school pay for: that college degree is so valuable, and the earning power of that over a lifetime is significant.”

Jones, who interned in the NCAA Office of Government Relations this summer, agreed.

“I think that as long as schools provide an education, the scholarship, and they’re providing different services like academics support and nutrition, they’re doing their part,” he said.

But Kirshner said universities should pay athletes to compete.

“It’s important to note that this still doesn’t scratch the surface of the real issue which is schools themselves not paying,” he said. “Just letting athletes be paid endorsement money for the use of their name, image, or likeness should be kind of a no-brainer. It doesn’t even get to the point of these schools making tens of millions of dollars a year and not sharing any of it.”

Evans said, though, that it’s impossible to predict all of the changes that might occur after student-athletes start earning money off their identities.

“I believe it’s the right thing to do, and we have to continue,” Evans said. “Instead of making excuses and saying all the problems it’s going to cause, let’s figure out how we can do it.”

Editor’s note: Amelia Jarecke is on the Maryland softball team. This did not compromise her reporting of this article, but it’s worth noting for the sake of transparency.