Name, Image, Likeness: What name, image and likeness means for college sports. And how the NCAA is turning to student-athletes to navigate a path. By Rachel Stark-Mason

In college sports, every new year brings the promise of a new season, a new chance at a title run and new college degrees to celebrate. But this year also promises a larger conversation that will shape the college sports world as it continues to turn.

The topic of student-athlete name, image and likeness has commanded attention and fueled debate in recent months, everywhere from conference rooms to coffee shops to Capitol Hill.

And over the course of 2020, it will be the focus of college sports leaders — university presidents, conference commissioners, athletics directors and others — who will determine what changes the NCAA can and should make to better support today’s student-athletes.

Questions about the issue rose to new decibels in February, when California legislators proposed a state bill that would enable California student-athletes to profit from their name, image and likeness — through avenues such as endorsement deals and marketing promotions — without regulation.

Given the need for consistent and fair rules among all NCAA members consistent with the NCAA's core principles, the Association formed a working group of member representatives in May to examine the issue and chart a path forward. Then in October, the group made recommendations to the Board of Governors, which adopted them and directed the NCAA’s three divisions to pursue rules changes around name, image and likeness, kick-starting a process that will play out over the coming year and result in a national rather than state-by-state solution.

The conversations will be far more complex than any headline or tweet can convey. Developing solutions will take months, not days. And as NCAA members dig into the work, they will repeatedly turn to the student-athletes at the center of the issue.

What Does “Name, Image and Likeness” Mean?

The term has taken on new meaning amid the national conversation. Most simply, “name, image and likeness” are three elements that make up a legal concept known as “right of publicity.”

Right of publicity involves those situations where permission is required of a person to use their name, image or likeness. For example, no permission is required for a newspaper to publish a photo of an athlete playing in a game. The legal copyright would belong to the photographer, not the person pictured.

In His Words:
Brandon Lee

Lee was a linebacker for Missouri football who graduated with a finance degree in 2018. In 2019, as he worked toward his MBA at Missouri, Lee was asked to represent student-athletes on the NCAA Board of Governors Federal and State Legislation Working Group, the group charged with exploring issues around student-athlete name, image and likeness.

I saw serving on the working group as a great opportunity to be a voice for the student-athletes and to give those that have been further removed from the game a more up-to-date personal view of the experience.

The discussion of name, image and likeness really started to rise earlier this year, with the passing of the California state bill and some superstar athletes speaking more about it to media outlets. I didn’t understand the issue at first. I believe I, just like the general public, kind of thought of it as “pay-for-play.” But after becoming a member of the working group, I understood that it was completely different from pay-for-play.

One thing I’ve learned is just the difficulty of making a process like this happen. There’s a right way to do things, and there’s a wrong way to do things. I truly believe you can’t just open the floodgates and anything goes. But allowing student-athletes to have the same opportunities as their colleagues in the general student population on campus, I believe that’s fair. I believe it should have been in the works of happening years ago, but here we are now — you can only focus on now. I just wish that everyone understood that there’s a process to it, and rushing that process is worse than taking the time to make sure everything happens smoothly.

I can honestly say that everyone in that room is putting forth effort to better the process and better the experience for student-athletes. Everybody at this point in time, maybe not necessarily when the group first started, but everyone has now decided to move forward with the process of compensating student-athletes for their name, image and likeness and figuring out the best way to make that happen sooner than later.

Going in, I didn’t think I was going to have such a big voice on the working group. But each meeting, each teleconference, I was called on more and more and looked at to give my views. I’m not the sole speaker for student-athletes because I haven’t experienced what softball players, women’s or men’s basketball players, tennis players or wrestlers have experienced. When questions arose for Olympic sports or sports outside of football, I took the opportunity of being on campus finishing my master’s degree to speak with other student-athletes. I’ve made it a priority to try and get their perspectives so they are able to have a voice through me.

In His Words:
Jackson Erdmann

In December, Erdmann completed his final football season as starting quarterback for Saint John’s (Minnesota) and graduated with a degree in business. He is one of three student-athlete representatives on the NCAA Board of Governors Federal and State Legislation Working Group, the group charged with exploring issues around student-athlete name, image and likeness.

It has definitely been a learning experience all the way through. A lot was going on in those working group meetings. We would be in a conference room, and I’m sitting at the table and across from me are Gene Smith and Val Ackerman, very high-up officials. Jack DeGioia, the president of Georgetown, was sitting next to me, and I had to whisper some questions to him every once in a while. Definitely one of my biggest takeaways is just how complex this issue is. How deep it gets so fast. Especially when the conversation gets into legality and marketing.

Before each meeting, we’d have a lot of materials to read for prep. I’d spend at least five or six hours reading the material, doing research and getting my thoughts and notes together. I was excited to be a part of it and thankful to be able to give a voice to Division III and all student-athletes.

I believe there are going to be changes no matter what happens, especially with the California legislation and other states acting on it now. So if we just sit back and relax, it’s going to be absolute chaos. With a free market, no regulations, that just leaves room for absolute chaos. It would get out of control real fast. We have to work through the reality of where we’re at and start acting on how the NCAA can change the rules and regulations to help fit the student-athletes and society right now.

 

What are the Current Rules, and How do They Impact Student-Athletes?

The current NCAA regulations on how student-athletes use their name, image and likeness vary among the three divisions. Athletics compliance administrators at each school and conference are charged with understanding and applying them on campus. The NCAA is a membership-led association, so leaders from more than 1,200 member colleges, universities and conferences make the rules.

Division I

In general, to maintain NCAA eligibility, Division I student-athletes may not promote or endorse a commercial product or service, even if they are not paid to participate in the activity.

Athletes may use their image to continue participating in nonathletically related promotional activities if they were initiated before college enrollment.

Divisions II and III

In general, student-athletes in Divisions II and III may participate in promotional activities not related to athletics, including promoting or endorsing commercial products or services. Student-athletes may be paid for participating in these activities under certain conditions — for example, when payment is not based on the individual’s involvement in athletics.

*In all divisions, there are several exceptions that allow the use of a student-athlete’s name, image or likeness in promotional activities. These include charitable, educational or nonprofit promotions; media activities; national governing body promotions; and camp and congratulatory advertisements.

In His Words:
Matthew Marquardt

Marquardt is a junior on Princeton’s swim team who is majoring in chemistry with minors in material science and entrepreneurship. With his brother, Marquardt designed a swimming device and received an NCAA waiver to promote the product because of its nexus with his entrepreneurship minor.

I’m a backstroker, and traditionally when you start your race, you start in the pool and you dive backward. In 2014, there were a couple of pretty high-profile cases where athletes at the national and international level were slipping on their starts. So they changed the rules to allow an assisting wedge to be placed in the pool at the start. The design is very simple, but the first product that came out was incredibly expensive. The next year, a slightly cheaper version came out, but they were still $700 apiece. In 2016, during my senior year of high school, I qualified for the U.S. Olympic Trials in swimming. And leading up to that event, I knew these starting blocks were going to be at the Olympic Trials, but I had no means to practice on them because they were so expensive. My brother and I decided we were just going to make one on our own.

We pretty much kept it to ourselves. But then when we brought it to practice, coaches were like, “This is really cool. Are you selling them?” At that time, I was in college, so I reached out to Kelly Widener (in athletics compliance) at Princeton to figure out how that would work and if I was allowed to sell things. Through discussion with her, and with her talking to the NCAA, which took between four and five months, I eventually got the waiver, which was super-helpful in making sure I didn’t violate any rules.

Having the waiver enabled me to do a lot more development and sales of the product. It enabled me to reach out to people in the swimming community to get their input and hear if they were interested in buying the product. We could get customer feedback and fine-tune the product.

At Princeton we have a minor in entrepreneurship, and one of the requirements is a culminating experience they call a practicum. Both BackFin and a clean energy company I helped start are going to be part of my practicum. I took last year off school to help start the clean energy company, Andluca Technologies. That’s my main focus now.

BackFin by no means has been a super-smashing success. But the lessons I have learned from being able to act like a nonathlete in terms of promoting the product and trying to sell it and being able to have a real business experience with it have taught me a lot.

In Her Words:
Arike Ogunbowale

Ogunbowale is a former Notre Dame women’s basketball student-athlete who, in 2018, hit buzzer-beating 3-pointers in both the semifinal and title games of the Division I Women’s Basketball Championship. A flurry of national attention followed, along with an invitation to compete against an all-athlete lineup on ABC’s “Dancing With the Stars.” Ogunbowale, then a junior, received a waiver from the NCAA to appear on the show and accept any benefits, including prize money. She could not participate in any commercials or other promotions for the show. Ogunbowale now plays basketball professionally in the WNBA and overseas.

After the national championship, that following morning before we had to catch a bus back to school, I was on ESPN. From there, I had phone interviews and in-person interviews with local media in South Bend. I went on “The Ellen DeGeneres Show” that same week. Just interview on top of interview on top of interview. After class, I would go to the basketball office, where our sports information director works, and we sat on the phone at least an hour every day doing interviews. It was definitely a lot. But it’s also a blessing to be in that position.

My SID told me about the invitation to go on “Dancing With the Stars.” I had to think about it. I like to dance, but I don’t dance professionally. It’s not like it was just for fun. That’s a nationally televised show. We went back and forth with the NCAA, and they happened to clear it so I could get paid. That definitely played a part in my decision.

I understand the NCAA being amateur and the next step is to become professional and be able to make money doing what you love. But I also feel like the rules set in place — I understand they want it to be equal across the board, but that’s just not life. Money is money. It doesn’t matter if you’re young or old.

I’m thankful they allowed me to do it, but it was also like, the show is really about getting people to vote for you, putting it out there, and I couldn’t say anything about it. I couldn’t be in the commercials on TV. I couldn’t tweet about it. It was like, you let me be on the show, but it’s like I’m not on the show because I can’t promote myself.

My dance partner came to South Bend, and we’d practice three hours a day. Then we would go to L.A. on Friday, be there over the weekend for the show, and then I would get a red-eye Monday night to be back for school on Tuesday.

I was the youngest on the cast out of the athletes. Just being around all those people who are all legends in their respective sports — hall of famers, historical winners — to be surrounded by a lot of greatness is something a lot of people can’t say they’ve done, especially at 21.

I think being on the show helped me a lot with trying new things and being open. I don’t have stage fright, but that was the first time I was actually nervous to do something. I can play basketball in front of 30,000 people, but on that little stage with those cameras and the lights, I was terrified the first time. It was definitely a learning process, and I think it just helped me be more comfortable any time in my life where I’m going to experience different things.

Current Flexibility

Additional flexibility has been provided over the years to college athletes who use their name, image or likeness to promote a business or product when narrowly tailored guidelines have been met. For example, since 2015, more than 200 waivers have been submitted in Division I to allow student-athletes to promote their own business or product — such as a book they wrote or a clothing line they created — and 98% of those waivers have been approved.

Student-athletes are most likely to meet the waiver criteria when they became involved in the business for reasons unrelated to athletics or the venture is tied to education. Any compensation they receive must be at a rate corresponding with their skill and experience, not based on athletic ability or reputation.

The waiver guidelines are not intended to be used as a substitute for changing the actual rules, which can only be done by the membership. NCAA staff who handle waiver requests strive to balance the benefits of additional flexibility with the current rules related to the collegiate model.

As an ever-changing society demands evolution, college sports administrators and student-athletes are working hand-in-hand to respond.

In Her Words:
Katarina Samardzija

Samardzija is a former Grand Valley State women’s tennis student-athlete who graduated in 2019. While in college, Samardzija started her own business selling wrist wallets and pocket headbands. She won the FedEx Small Business Grant Contest and received an NCAA waiver to use her status as a student-athlete to participate in promotional activities related to the grant. Samardzija now runs her business, Locker Lifestyle, full-time.

It was sophomore year when my business really started up. I had my valuables stolen out of my gym locker after tennis practice. I was so frustrated. I wanted to be able to do things while having the basics with me, but I couldn’t find any products I liked.

My ‘momager,’ as I like to call her, owns a bridal store. She was the one who encouraged me to meet with the seamstress and tell her what I wanted. We created what became the Wrist Locker, a wrist wallet that’s the length of an ID and can fit cash, keys and a phone. I really just wanted one for myself, but then I had all these people asking me where they could get it. It snowballed from there. I went back to my mom’s bridal store, learned how to sew, and was able to make everything there. I was selling my first products out of my college dorm room.

Things were going fast but came to a halt in January 2017, when my mom lost her store to a devastating fire. So not only did she lose her business of 26 years, I also had all my materials, patterns, prototypes — everything was in that store. I was so young in the business, I thought, how am I supposed to go through with this? One of my professors told me to enter an entrepreneur-type pitch competition, and I ended up winning. That was $7,500 in grants to kickstart the business again.

Since that first competition, I realized I enjoyed speaking and talking to people about my business. I’ve since entered 13 other pitch competitions and have had a lot of success at them.

In 2018, I was the youngest winner of the FedEx Small Business Grant Contest. With the announcement of the winners, FedEx wanted to do a promo on campus showing me playing tennis and working out of my apartment. We wanted to promote that I’m able to be this student-athlete at this awesome university. But the NCAA rules would not allow me to say I was a tennis player in the promotion. It was frustrating, and at first I debated whether or not to even continue being on the team if I couldn’t promote who I was in this grant contest.

I was asked to submit a legislative relief waiver to provide me with the ability to use my status as a student-athlete to promote my product. It ended up working out, and I was allowed to do the tennis shoot. But it was a confusing experience to be honest.

FedEx was so great; it was a huge platform to share my story. Now I serve on the FedEx entrepreneurial advisory board. I also co-brand with them. On the back of our Wrist Lockers, we have the FedEx logo.

I went back and forth a lot in school about whether or not it was worth it to balance tennis and my business. But I’m so glad I stuck with it because I was able to keep my scholarship and have the team camaraderie. When I went to practice, that was my break. It forced me to take breaks, travel, have fun, meet new people and be with my teammates. That was such an important aspect, because those girls are some of my best friends still to this day.

In His Words:
Clark Hazlett

Hazlett is a football player who graduated in December from Linfield with a degree in marketing and sports studies and a minor in digital art. Throughout college, Hazlett documented his journey and amassed a following of around 119,000 subscribers on his YouTube channel, “Adventure Athlete.” Hazlett did not monetize the videos as a student-athlete.

My mission is to inspire younger athletes to have other passions outside of athletics. Mine are videography, photography and exploring the outdoors. Right before Instagram really popped off, I changed my handle to Adventure Athlete. It evolved from the basics, making videos and photography on Instagram, to the platform of YouTube, which is where I’ve had the most success so far.

I was hurt my junior year. I tore my labrum in my right hip. Getting a chance to document my journey throughout that process helped me stay in love with the game of football and want to continue to be around the sport while I was going through that time of not being physically active for about a month. I then realized I was making a big impact on the viewers watching my videos. I had a steady workflow and created a habit. And that’s how my decision to start documenting my journey full time came about.

Really through word of mouth is how I was able to gain traction. Being a Division III quarterback, and even a backup quarterback, people respect that I’m a little more relatable. Going through the different trials and tribulations, I think that’s a big part of my brand story, which has also allowed me to be successful.

High school and middle school athletes are my biggest audience. Looking at my demographics, it shows a lot of parents watch my videos, as well. I try to have my content be family-friendly and as educational as possible. I add my own creativity and personality to make these videos a little more interesting to watch.

Making and posting videos to YouTube these days isn’t just posting a video. There’s a lot of back-end things that need to be understood. It gives athletes the ability to build their personal brand and understand the business aspect of what it’s like to have your own brand. YouTube, I think, is the best place for athletes to document their journey because of how controlled the platform is. There is a system set up where, after you reach a certain amount of views and subscribers, you could make money off your videos by playing advertisements on those videos. That money can be withheld in a Google AdSense account, which is connected to your YouTube channel.

I just signed a contract to go play football in France. How the coach in France found me was through my YouTube channel. He was able to get a really good grasp of who I am as a person through watching my videos.

When you get to college, even as a backup quarterback at the Division III level, everyone has a level of influence for the four years you’re playing the sport. And once you’re done, that influence is gone unless you’re able to capture it and build off of it. Before going to France, my goal was to build this platform, have this level of influence and be able to use that in the workforce moving forward, in some sports management role. Now not only am I going to be able to be paid to play overseas, but I can document my journey and shine light on what it’s like to play there. I’ve been able to build a name for myself, and that’s something that’s really cool.

In Her Words:
Jaila Tolbert

Tolbert is a former volleyball student-athlete at Virginia Tech who graduated in 2019. Tolbert previously served on the national Division I Student-Athlete Advisory Committee and is now one of three student-athlete representatives on the Division I Name, Image and Likeness Legislative Solutions Working Group.

When I was called on to join this committee, it was a no-brainer. With this name, image and likeness issue, it’s important that I’m meticulous in this conversation. I’m going to hopefully impact a lot of my peers in a positive manner and hopefully get it done the right way.

It’s happening, and at the end of the day, change is always going to be kind of scary. But it can also be very necessary and super exciting. I’m going to go into all of this with a positive outlook. It’s time to modernize the system and really keep up with today’s student-athlete.

We’re the solutions group, so coming up with some kind of framework is going to be a huge part of our plan. My goals are to make those recommendations that align with NCAA principles and allow student-athletes to benefit from their name, image and likeness. Having that same access that regular students have. Presenting more opportunities for student-athletes as much as we can without us being seen as professionals. Keeping the student-first mentality, playing our sport at the highest level and then getting all the opportunities we deserve after college. We also have to prepare for any unintended consequences that may arise from the change.

It’s going to be a long process. It’s not something that happens overnight. That’s just not how legislation in general works. Student-athletes being engaged is going to be extremely important. I’m excited — it’s changing times.

 

What’s Happening Now?

In October 2019, the NCAA’s top governing body directed the NCAA’s three divisions to pursue rules changes that will permit student-athletes to more easily benefit from the use of their name, image or likeness. The directive from the NCAA Board of Governors is a significant step toward change, but the work continues.

Now representatives from NCAA member schools and conferences who serve on committees are examining the current rules and, over the next several months, will propose changes. The membership will vote on these rules changes no later than January 2021.

The board directed that any rules changes must maintain the clear distinction between college sports and professional sports and preserve the higher education focus of the NCAA, reaffirming that student-athletes are students first and not employees. The changes also must account for the unique recruiting environment in college sports, which does not exist anywhere else. As members work to develop solutions, they also must look out for potential areas for abuse. Yet as society and technologies constantly evolve, predicting every pitfall or loophole is an impossible endeavor.

January

  • Discussion of general name, image and likeness concepts at the 2020 NCAA Convention.

Spring

  • Updates to each division’s top committee, comprising college and university presidents and chancellors.

Summer

  • Continued discussion among member schools and feedback on legislative concepts.

Fall

  • Deadline for submission of 2021 legislative proposals.

January

  • Anticipated vote by each division on name, image and likeness rules at the 2021 NCAA Convention.

In His Words:
Sam Perelman

Perelman is a former tennis player at Old Dominion who graduated with an undergraduate degree in 2018 and is now pursuing a master’s in business administration. Perelman is on the national Division I Student-Athlete Advisory Committee and is also one of three student-athlete representatives on the Division I Name, Image and Likeness Legislative Solutions Working Group.

Before the October Board of Governors meeting, Division I SAAC wrote an op-ed piece about name, image and likeness. We debated it quite a lot — not just whether to write it, but when to publish it and what to say. I think ultimately the group sort of realized the whole concept is very ambiguous, and that’s sort of what we wanted to get across to everybody. That similar to some things that occur in our country, let’s encourage everybody to try and understand fully what’s going on and then give our opinion. We didn’t want to or try to, I hope, sway people one way or another. We simply wanted to push people to learn more.

Our group realizes that we don’t speak for all 500,000 student-athletes. But we also recognize that within the governance structure, we were the 32 chosen to speak for Division I student-athletes. We try to do our best not to put on our individual hats or even our schools’ hats. In that room we represent all of our conference’s student-athletes.

SAAC as a whole is an entity that allows student-athletes a voice within the NCAA. I personally don’t think it gets taken advantage of enough. And that’s not one single person or one single group’s fault. But this is every student-athlete’s avenue to sharing their opinions. Even if you don’t necessarily want to be a part of it, share your opinions and get your team’s SAAC reps more involved. Get the email of your Division I SAAC rep. I would much rather have a full inbox than an empty inbox.

 

In Her Words:
Krissy Ortiz

Ortiz is a former golfer and 2019 graduate of Lynn who now works as a graduate assistant for athletics at Georgian Court. She is a member of the national Division II Student-Athlete Advisory Committee.

I think some student-athletes are excited and willing to talk about name, image and likeness and are eager to see the course it goes down. But I also feel a lot of student-athletes are uninformed. They don’t really know what’s going on and how that affects them.

I would tell student-athletes to keep reading up on the issue. Continue to have these conversations with other student-athletes and with people who are working in athletics. Even if you’re not on SAAC, take them to your campus SAAC, and the campus SAAC will take it to the conference SAAC. It’ll work up the ladder that way.

In Division II, we’re planning on having a conversation about name, image and likeness at every single national SAAC meeting until January 2021. After every meeting, we’re going to take it back down the chain, from the national SAAC to the conference SAAC to the campus SAAC. But we want the conversation to work the other way, too. 

 

How Student-Athletes can get Involved

Educate themselves.

Read the principles and guidelines issued by the NCAA Board of Governors. Talk to the compliance administrator and others in the athletics department. Ask questions.

TALK with other student-athletes.

Generate thoughtful discussion with teammates and members of the school’s Student-Athlete Advisory Committee.

Share feedback.

The national Student-Athlete Advisory Committee in each division has a seat at the decision-making table, representing all student-athletes. Leverage the SAAC structure — which connects the national SAAC to conference and campus SAACs — to ensure the student-athlete voice is heard.

Stay tuned.

Check back to ncaa.org/nil for more information over the coming months.

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