Officials huddle on use of athletes’ images

Should video-game makers and organizers of fantasy sports leagues be allowed to profit from the use or likeness of college athletes? And if so, should the athletes themselves stand to benefit?

These questions were the subject of an Oct. 27 forum by the Knight Commission on Intercollegiate Athletics, whose members warned of the importance of protecting student athletes from commercial exploitation–especially as technology allows for the proliferation of new forms of media.

Some former college athletes who attended the forum argued that students should be free to decide how their name and likeness would be used–mostly because of the "coolness factor."

"I would be excited to see my likeness and playing abilities in an EA Sports game," said Marvin Lewis, associate athletics director at Georgia State University and former basketball player at Georgia Tech. He said many of his former teammates would feel the same way.

But commission members, as well as a panel of lawyers and media experts, said colleges could have a case to prevent media companies from creating fantasy leagues using their athletes’ names and likenesses.

"College athletes in fantasy games and video games may seem trivial to some, but these and other forms of new media pose new challenges to the long-held distinction between commercial activity featuring teams and that which focuses on individual athletes," said R. Gerald Turner, Knight Commission co-chairman and president of Southern Methodist University.

"We continue to believe that universities need to treat athletes fairly and equitably," Turner said, "and for third parties to use them in commercial products and advertisements violates that principle."

Panelist Jeffrey Mishkin, a partner with Skadden, Arps, Slate, Meagher, and Flom LLP and Affiliates, and former executive vice president and chief legal officer for the National Basketball Association, said a recent court case found that while the use of a professional athlete’s name and likeness was a violation of the player’s privacy rights, it didn’t outweigh the First Amendment rights of publishers to free speech.

Mishkin said that even though he doesn’t agree with the court’s ruling, he thinks student athletes should be examined differently.

He explained that a fantasy league can pay a publicity licensing fee to professional athletes, because in most cases professional athletes are looking for ways to maximize their earnings. However, student athletes are not allowed to accept a publicity licensing fee.

Legal experts and former college athletes agreed that while students should not be paid for playing a college sport, there could be other ways to support student athletes.

"The No. 1 monopoly in the United States is the NCAA," said Jeremy Bloom, a former football player for the University of Colorado and a world champion and Olympic snow skier. "College athletics is not amateur anymore."

Bloom, who sat on a panel of former athletes, said everyone knows that intercollegiate sports–especially football and basketball–are a for-profit entity. He said the money not only should be used to fund scholarships, but also could help pay for year-round medical insurance or be put toward graduate school tuition.

Commission member Len Elmore, who is an analyst for ESPN and a partner at Dreier LLP, said the link between commercialism and intercollegiate athletics might be inevitable, "given new technologies that are intersecting with consumer demand for interactivity and reality-based gaming."

"If college athletes’ names and likenesses are to be used in commercial products, advertisements, or fantasy sports games, there must be a way to balance the inequities by providing some sort of benefit to athletes through mechanisms other than ‘pay for play,’" Elmore said.

Panelist Wallace Renfro, vice president and senior advisor to the president of the NCAA, said the purpose of intercollegiate athletics is to provide an education–and the entertainment value assigned to a sport should not undermine that. While commercialism will always be part of intercollegiate athletics, Renfro said, the less commercialism that is seen, the better.

Renfro acknowledged that with technology constantly changing, it’s hard to create guidelines for the NCAA.

"We can’t rely on rules and regulations to harness the potential of new technologies and applications. We have to learn to depend on commonly held principles that guide rational application at national and campus levels," he said. "There needs to be a reaffirmation that a student’s likeness or name can’t be used for financial gain."


Knight Commission on Intercollegiate Athletics

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