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Change to name, image, likeness policy will ultimately require new federal law

Gene Smith presents overview of NCAA working group to University Senate

Student-athletes in the United States have been able to earn money associated with their name, image and likeness since 2015 – if they got a waiver from the NCAA, and according to strict guidelines. More than 200 students have received those waivers.

The NCAA Board of Governors voted on Oct. 29 to change its policies to give all students participating in athletics the opportunity to benefit from the use of their name, image and likeness. The organization is now working on what that legislation will look like.

Gene Smith, senior vice president and Wolfe Foundation Endowed Athletics Director at The Ohio State University, co-chaired the working group that studied issues surrounding such a policy change and recommended that the NCAA create the new legislation.

Smith presented an overview of the process to University Senate on Nov. 14.

He described an Ohio State lacrosse player who received a waiver from the NCAA to sell his original music on iTunes.

“Under the old rules, he would have had to give up that creative talent so he could play lacrosse here,” Smith said. Instead, with the waiver, “he’s still allowed to take advantage of this talent and skill that has nothing to do with lacrosse.

“Many of those waiver cases are similar to that. … We need to try and find a way to open that up to our membership across the country.”

The California bill allowing student-athletes to monetize use of their name, image and likeness has served as a catalyst for several other states pursuing similar laws. Smith said trying to field nationally relevant intercollegiate competitions in different states with different laws would be unworkable – so the NCAA, league commissioners and institutions see federal legislation that creates consistency across the country as the only practical solution.

“We need to come up with a method to allow our student-athletes to take advantage of their name, image and likeness, make sure it’s something we can regulate, and make sure it’s something that’s not tied to athletic ability,” he said. “We don’t want to turn this into a pay-to-play model or a situation where they’re compensated for their athletic ability. We’re trying to find a way to keep it tethered to the educational process.

“It’s a complex issue, and we feel good about the direction we’re headed in. But the reality is we’ve got to work with the federal government to come up with a national law,” he said.

Though name, image and likeness attention tends to be focused on the fraction of top athletes who are destined for the pros, Smith said Olympic sport athletes stand to benefit significantly because many of them are on partial scholarships that cover between 15 and 30 percent of their college costs.

“Many of them leave with debt ... so they’ll take advantage of this opportunity to hopefully reduce the debt they incur getting their education,” he said.

The working group will continue deliberating through April. The Board of Governors, chaired by Ohio State President Michael V. Drake, asked each of the three divisions to create any new rules beginning immediately, but no later than January 2021.

Reaching consensus could take some time, Drake said, noting that the NCAA governs intercollegiate athletics at 1,100 institutions.

“Part of the complexity is to come up with a solution that works for small liberal arts colleges, large public research universities and everything in between. That’s the reason this is not just being done overnight,” Drake said. “We want something that is fair and that supports the 500,000 collegiate student-athletes across the country.”

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