A Friday panel tackled a major debate in the world of college sports today: the rights of student-athletes and how they should be compensated.
The event was attended by several professors and two United States senators, including former presidential candidate Cory Booker (D-NJ). Moderated by David Duncan, co-president of the Duke Sports and Entertainment Law Society, and Zack Flagel, director of Duke’s Future College Sports Initiative, the event kicked off with a brief overview of the NCAA’s battle to address student-athletes’ rights and compensation in a clear and systematic way.
“The attacks on the structure of NCAA regulation have come in two forms,” said Paul Haagen, a professor at the School of Law, including antitrust lawsuits and “increasingly, in state-level legislation aimed at enjoining the NCAA from preventing athletes from monetizing their athletic fame by entering into name, image and likeness—or NIL—contracts.”
The NCAA has taken steps to reverse its current amateurism rules prohibiting college athletes from receiving endorsement money. Last year, the the NCAA’s Board of Governors announced it would move forward with allowing college athletes from using their NIL to receive compensation, and in April the board supported policy changes allowing endorsement pay for athletes as well as guardrail—or regulatory—restrictions.
Men’s basketball head coach Mike Kzyzrewski voiced support in 2019 for a California bill permitting college athletes profiting off their name, image and likeness while still in school.
“It is a sign of the times that we in college athletics must continually adapt, albeit in a sensible manner. While we have made significant progress in recent years, we have not always responded to the needs and rights of our players swiftly, and frankly, we’re playing catchup after years of stagnant rules,” he said at the time.
Kevin White, Duke’s athletic director, told The Chronicle at the time that the NCAA’s decision last year to move ahead with allowing compensation from NIL showed “progress toward impactful reform.”
Leonard Simon, adjunct professor at the University of San Diego School of Law, continued Friday’s conversation on NIL by contrasting the stories of Zion Williamson and Dylan Dethier. He explained that Williamson, a former Blue Devil, could have made a lot of money as LeBron James had when he went straight to the NBA from high school—but as a college athlete, he could not do that.
Dethier attended Williams College and intended to play golf, but while taking a gap year, he wrote a book about golf and made money from it. As a result, the NCAA considered Dethier a professional athlete who could no longer compete at the collegiate level.
“In the current situation, if you make any money off your name, image and likeness, with the rarest of exceptions, you are a professional. And you can’t play,” Simon said. “Hence, Zion is out of luck. No contracts. No Nike contract in his one year at Duke. No opportunity to monetize his enormous Instagram account.”
Simon saw this as an issue of fairness since Williamson generated millions of dollars for Duke, for the ACC and for the NCAA—while not getting any of that money for himself.
“We have agreed not to allow our athletes to monetize their name, image and likeness,” Simon said. “And we have created a price fix. We have agreed that none of us will pay more than a college scholarship for the work of the workman—Zion and his colleagues. And people have complained bitterly about the fact that college athletes cannot ask for and negotiate for salaries and cannot get the image and likeness.”
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Simon added that these issues bring up additional complications of students considered as employees for student-athlete salaries, the question of unionizing, Title IX problems and university administrative problems.
He also emphasized the benefits of name, image and likeness contracts.
“Why not NIL?” he asked. “It’s market regulated. It’s somebody else’s money. It doesn’t affect your budget. You don’t decide how much anybody makes.”
According to the panelists, the issue is that states are now proposing bills to allow NIL contracts, which threatens the NCAA.
“[The NCAA] has found itself in the historically ironic position of going to Congress to plead for some kind of federal legislation, and particularly federal legislation aimed at giving them antitrust immunity,” Haagen said.
The NCAA has gone to Congress to help it navigate rule changes in NIH rules. In a July Senate Judiciary Committee hearing, the organization asked lawmakers to consider federal legislation with an antitrust exemption, which would allow endorsement deals to be regulated without the fear of lawsuits.
At the hearing, NCAA President Mark Emmert said an independent entity should monitor endorsement agreements, and needs “to be provided with sufficient protection that they can take sufficient action without constant threat of litigation.”
Booker and Sen. Chris Murphy (D-CT) joined the event halfway through to discuss their College Athletes Bill of Rights, which works to address many of the concerns previously raised.
Booker explained that the issue is personal to him as a former scholarship athlete at Stanford University. The NCAA coming to Congress to help is an opportunity to institute much-needed change, he said.
“I think this creates a tremendous opportunity for us to actually pursue justice for athletes to end exploitation, and to create more fairness, and more opportunities for college athletes,” Booker said. “...We really felt it was important to get a basic fundamental bill of rights for college athletes, what it amounts to really is just a bill of fairness, that really ends exploitation and affirms to them that basic rights that they should be afforded that they should have been afforded even decades ago.”
Both senators agreed that guardrails are necessary to protect the athletes. Murphy argued, however, that guardrails should be set by Congress rather than the NCAA since Congress best represents the interests of citizens and student athletes.
“The NCAA would like the ability to set the guardrails on their own right. They've essentially asked Congress to grant them the authority to decide what endorsement deals students can do and what they can't. To me, that's unacceptable,” Murphy said.
Booker added that this goes to the “fundamental idea of what is exploitation.” Exploitation, he said, is when athletes have “no voice, no influence, whatsoever around controlling their own destiny or benefiting from their worth.”
“It's really frustrating for me, that we have a system right now, where you have these young adults really stripped of their ability to influence these decisions [being] made by folks who are profiting exorbitant amounts off of them,” he said.
Murphy added that those who profit are, “by and large, white coaches, white athletic directors, white sports industry CEOs,” while those who are providing the labor and being denied compensation at the biggest basketball and football programs are, “by and large, African American males.”
The Future of College Sports Initiative is a series of conversations on NCAA reform hosted by Duke Law's Sports and Entertainment Law Society. The event was also co-sponsored by Duke Law's Black Law Students Association and Duke Bar Association, as well as the Students Sports Law Network and Fuqua School of Business's Media, Entertainment and Sports Club.