UPDATE IV: Chronicle of Higher Education plug here. We are keeping at it.
UPDATE III: No go. LGC defeats three, tables one. Very prudently so, with the pending litigation analyzed earlier and in our ensuing pieces. LGC met earlier this week, Apr 11 and 12, on important agenda items. Check back here for full April LGC meeting report. And stay tuned, quite a bit coming up on this amateurism policy front in the near future.
UPDATE II: After the January Convention and the Legislative Council (LGC) sending Proposal 2010-26 for further membership review and commentary, the Amateurism Cabinet provided recently (Feb 2011) some options for adoption of the proposal for the membership (and eventually the LGC) to consider. As usual the LGC will have the key decision in its mid-April meeting in which it can adopt, defeat, or amend legislation, forwarding to the Board of Directors (end of April meeting), which will be charged with the decision triggering the final 60-days’ override period carrying the proposal to its final status as adopted, amended (and adopted), or defeated at the end of June.
As our research group is completing two empirical pieces on related policy matters, and the issues herein (per prior scholarship) are pending before the 9th Cir. in cases which our research group forecasted, we will refrain from further commentary at this time.
A week before the NCAA Convention in San Antonio, always useful to refresh our review of certain key amateurism policy proposals. As per recent research and implications for practitioners, arguably the most interesting and controversial (considering related proposals were tabled a few years ago; UPDATE confirming controversial character and significance of proposal on NCAA News here) is 2010-26, coming after the wave of litigation and policy entanglements over student-athletes’ likenesses and in particular their use in college sports video games. For the time being, find the proposal as it stands below, and more analysis and updates to follow subsequent to NCAA Convention sessions. Proposal 2010-26:
(Update, March 13, incl. new amendments’ links)
|2010-26-1||AMATEURISM — PROMOTIONAL ACTIVITIES — USE OF A STUDENT-ATHLETE’S NAME OR LIKENESS — PRIMARY PURPOSE OF COMMERCIAL ADVERTISEMENT|
|2010-26-2||AMATEURISM — PROMOTIONAL ACTIVITIES — USE OF A STUDENT-ATHLETE’S NAME OR LIKENESS — NO COMMERCIAL ADVERTISEMENTS OTHER THAN CONGRATULATORY|
|2010-26-3||AMATEURISM — PROMOTIONAL ACTIVITIES — USE OF A STUDENT-ATHLETE’S NAME OR LIKENESS — CO-SPONSORS OF PROMOTIONAL ACTIVITIES — CONSOLIDATION OF MEDIA ACTIVITIES|
60-Day Comment Period Process Diagram
To revise the regulations related to use of a student-athlete’s name or likeness for promotions, advertisements and media activities, as specified.
Amend 12.02, as follows:
12.02 DEFINITIONS AND APPLICATIONS
12.02.2 Likeness. Likeness includes an individual’s image, photograph, likeness (whether actual, simulated, photographic, computer-generated, rendered, caricature or otherwise), voice (whether speaking, rapping, singing, altered or otherwise), personality, biographical information and/or other personal identification.
12.02.3 Name. Name includes an individual’s name, nickname, sobriquet, signature (whether actual, simulated, photographic, computer-generated, rendered, caricature or otherwise) and/or other personal identification.
[12.02.2 through 12.02.5 renumbered as 12.02.4 through 12.02.7, unchanged.]
Amend 12.5.1, as follows:
184.108.40.206 Institutional, Charitable, Education or Nonprofit Promotions. A member institution or recognized entity thereof (e.g., fraternity, sorority or student government organization), a member conference or noninstitutional charitable, educational or nonprofit agency may use a student-athlete’s name, picture likeness or appearance to support its charitable or educational activities or to support activities considered incidental to the student-athlete’s participation in intercollegiate athletics, provided the following conditions are met:
(a) The student-athlete receives written approval to participate from the promotional activity must be approved in writing by the institution’s director of athletics (or his or her designee who may not be a coaching staff member), subject to the limitations on participants in such activities as set forth in Bylaw 17;
(b) The student-athlete and an authorized representative of the charitable, educational or nonprofit agency must sign a release statement granting permission to use his or her name, likeness or appearance in a manner consistent with the requirements of this section;
(bc) The specific promotional activity or project in which the student-athlete participates does not may involve co-sponsorship, advertisement or promotion by a commercial agency entity, as approved by the institution, subject to the following conditions: other than through the reproduction of the sponsoring company’s officially registered regular trademark or logo on printed materials such as pictures, posters or calendars. The company’s emblem, name, address and telephone number may be included with the trademark or logo. Personal names, messages and slogans (other than an officially registered trademark) are prohibited;
(1) The promotion must identify (e.g., via graphics, voice over, text) the commercial entity’s affiliation with the institution, conference or noninstitutional charitable, educational or nonprofit agency (e.g., entity is the official sponsor of the institution or event); and
(2) There is no indication in the makeup, wording or action of the co-sponsorship that the student-athlete endorses or is directly promoting the use of a product or service of the commercial entity.
(c) The name or picture of a student-athlete with remaining eligibility may not appear on an institution’s printed promotional item (e.g., poster, calendar) that includes a reproduction of a product with which a commercial entity is associated if the commercial entity’s officially registered trademark or logo also appears on the item;
(d) The student-athlete does shall not miss class;
(e) All money’s derived from the activity or project go directly to the member institution, member conference or the charitable, educational or nonprofit agency;
(fe) The student-athlete may accept actual and necessary expenses from the member institution, member conference or the charitable, educational or nonprofit agency related to participation in such activity; and
(g) The student-athlete’s name, picture or appearance is not used to promote the commercial ventures of any nonprofit agency;
(hf) Any institutional commercial items with names, or likenesses or pictures of multiple student-athletes (other than highlight films or media guides per Bylaw 220.127.116.11) may be sold only at by the member institution at which the student-athlete is enrolled, the institution’s conference, institutionally controlled (owned and operated) outlets or other institutionally authorized entities (subject to Bylaw 18.104.22.168.1) or outlets controlled by the charitable, educational or nonprofit organization (e.g., location of the charitable or educational organization, site charitable event during the event). Items that include an individual student-athlete’s name, picture or likeness (e.g., name on jersey, name or likeness on a bobble-head doll), other than informational items (e.g., media guide, schedule cards, institutional publications), may not be sold; and
(i) The student-athlete and an authorized representative of the charitable, educational or nonprofit agency sign a release statement ensuring that the student-athlete’s name, image or appearance is used in a manner consistent with the requirements of this section.
22.214.171.124.1 Sale of Institutional Commercial Items. A commercial entity may sell an institutional commercial item that includes the names and/or likenesses of multiple student-athletes, provided the following conditions are met:
(a) The sale of the commercial item is approved by the institution’s director of athletics (or his or her designee who may not be a coaching staff member);
(b) The commercial item must be considered to be an institutional item and must include the name of the institution. Two or more institutions may collectively agree to authorize or license a commercial item that includes the names or likenesses of multiple student-athletes [any commercial item authorized for sale by the institution (or institutions) may be considered to be an institutional commercial item];
(c) The involved student-athletes have signed a release statement granting permission to use their names or likenesses in a manner consistent with the requirements of this section;
(d) The involved student-athletes shall not directly endorse or promote the use of the commercial item; and
(e) The commercial item does not involve or relate in any way to alcoholic beverages, tobacco products or an organization that is involved with or promotes gambling.
126.96.36.199.12 Promotions Involving NCAA Championships, Events, Activities or Programs. The NCAA [or third part acting on behalf of the NCAA (e.g., host institution, conference, local organizing committee)] may use the name or picture likeness of an enrolled student-athlete to generally promote NCAA championships or other NCAA events, activities or programs.
188.8.131.52.23 Promotions Involving Commercial Locations/Sponsors. A member institution, a member conference or a charitable, educational or nonprofit organization may use the appearance, name or picture likeness of an enrolled student-athlete to promote generally its fundraising activities at the location of a commercial establishment, provided the commercial establishment is not which may be a co-sponsor of the event activity, provided and the student-athlete does not directly promote the sale of a commercial product or service in conjunction with the fundraising activity. A commercial establishment would become a co-sponsor if the commercial establishment either advertises the presence of the student-athlete at the commercial location or is involved directly or indirectly in promoting the activity.
[184.108.40.206.3 through 220.127.116.11.4 renumbered as 18.104.22.168.4 through 22.214.171.124.5, unchanged.]
126.96.36.199.5 Schedule Cards. An advertisement on an institution’s wallet-size playing schedule that includes the name or picture of a student-athlete may include language other than the commercial product’s name, trademark or logo, provided the commercial language does not appear on the same page as the picture of the student-athlete. A violation of this bylaw shall be considered an institutional violation per Constitution 2.8.1; however, such a violation shall not affect the student-athlete’s eligibility.
[188.8.131.52 through 184.108.40.206 unchanged.]
220.127.116.11 Congratulatory Advertisement or Promotion. It is permissible for a student-athlete’s name or picture, or the group picture of an institution’s athletics squad, to appear in an advertisement of a particular business, commercial product or service, provided:
(a) The primary purpose of the advertisement is to publicize the sponsor’s congratulations to the student-athlete or team;
(b) The advertisement does not include a reproduction of the product with which the business is associated or any other item or description identifying the business or service other than its name or trademark;
(c) There is no indication in the makeup or wording of the advertisement that the squad members, individually or collectively, or the institution endorses the product or service of the advertiser;
(d) The student-athlete has not signed a consent or release granting permission to use the student-athlete’s name or picture in a manner inconsistent with the requirements of this section; and
(e) If the student-athlete has received a prize from a commercial sponsor in conjunction with participation in a promotional contest and the advertisement involves the announcement of receipt of the prize, the receipt of the prize is consistent with the provisions of Bylaw 18.104.22.168.3 and official interpretations.
An advertisement or promotion by a commercial entity may include a student-athlete’s name or likeness (e.g., competition video footage, competition photographs), provided the following conditions are met:
(a) The advertisement or promotion is approved by the institution’s director of athletics (or his or her designee who may not be a coaching staff member);
(b) The student-athlete has signed a release statement granting permission to use his or her name or likeness in a manner consistent with the requirements of this section;
(c) The student-athlete does not miss class;
(d) The advertisement or promotion identifies (e.g., via graphics, voice over, text) the commercial entity’s affiliation with the institution, conference or the NCAA (e.g., entity is the official sponsor of the institution or event);
(e) There is no indication in the makeup, wording or action of the advertisement or promotion that the student-athlete endorses or is directly promoting the use of a product or service of the commercial entity;
(f) If a student-athlete’s name is used in the advertisement or promotion, a reference to the student-athlete’s institution must be used immediately before or after his or her name; and
(g) The advertisement or promotion does not involve alcoholic beverages, tobacco products or an organization that is involved with or promotes gambling.
22.214.171.124.1 Effect of Violation. A violation of this bylaw shall be considered an institutional violation per Constitution 2.8.1; however, the student-athlete’s eligibility shall not be affected.
[126.96.36.199 through 188.8.131.52 unchanged.]
184.108.40.206 Promotion by Third Party of Highlight Film, Video or Media Guide. Any party other than the institution or a student-athlete (e.g., a distribution company) may sell and distribute an institutional highlight film or video or an institutional or conference media guide that contains the names and pictures of enrolled student-athletes only if:
(a) The institution specifically designates any agency that is authorized to receive orders for the film, video or media guide;
(b) Sales and distribution activities have the written approval of the institution’s athletics director;
(c) The distribution company or a retail store is precluded from using the name or picture of an enrolled student-athlete in any poster or other advertisement to promote the sale or distribution of the film or media guide; and
(d) There is no indication in the makeup or wording of the advertisement that the squad members, individually or collectively, or the institution endorses the product or services of the advertiser.
[220.127.116.11 through 18.104.22.168 renumbered as 22.214.171.124 through 126.96.36.199, unchanged.]
Amend 12.5.2, as follows:
188.8.131.52 Advertisement and Promotions Subsequent to Enrollment. After becoming a student-athlete, an individual shall not be eligible for participation in intercollegiate athletics if the individual:
(a) Accepts any remuneration for or permits the use of his or her name or picture likeness to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind, except as permitted in Bylaws 184.108.40.206 and 220.127.116.11, or
[Remainder of 18.104.22.168 unchanged.]
22.214.171.124 Use of a Student-Athlete’s Name or Picture Likeness without Knowledge or Permission. If a student-athlete’s name or picture likeness appears on commercial items (e.g., T-shirts, sweatshirts, serving trays, playing cards, posters) or is used to advertise or promote a commercial product or service sold by an individual or agency without the student-athlete’s knowledge or permission in a manner contrary to the requirements of Bylaw 126.96.36.199, the student-athlete (or the institution acting on behalf of the student-athlete) is required to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics. Such steps are not required in cases in which a student-athlete’s photograph is sold by an individual or agency (e.g., private photographer, news agency) for private use.
188.8.131.52 Specifically Restricted Activities. A student-athlete’s involvement in promotional activities specified in this section is prohibited.
184.108.40.206.1 Name the Player Contest. A student-athlete may not permit use of his or her name or picture in a “name the player” contest conducted by a commercial business for the purpose of promoting that business.
220.127.116.11.2 Athletics Equipment Advertisement. A student-athlete’s name or picture may not be used by an athletics equipment company or manufacturer to publicize the fact that the institution’s team uses its equipment.
[18.104.22.168 renumbered as 22.214.171.124, unchanged.]
Amend 12.5.3, as follows:
12.5.3 Media Activities.
(a) During the Playing Season. During the playing season, a student-athlete may appear on radio and television programs (e.g., coaches’ shows) or engage in writing projects when the student-athlete’s appearance or participation is related in any way to athletics ability or prestige, provided the student-athlete does not receive any remuneration for the appearance or participation in the activity. The student-athlete shall not make any endorsement, expressed or implied, of any commercial product or service. The student-athlete may, however, receive actual and necessary expenses directly related to the appearance or participation in the activity. A student-athlete participating in media activities during the playing season may not miss class, except for class time missed in conjunction with away-from-home competition or to participate in a conference-sponsored media day.
(b) Outside the Playing Season. Outside the playing season, a A student-athlete may participate in media activities (e.g., appearance on radio, television, in films or stage productions or participation in writing projects) when such appearance or participation is related in any way to athletics ability or prestige, provided the student-athlete is eligible academically to represent the institution, and he or she does not receive any remuneration for such appearance or participation and he or she is not portrayed in a manner as promoting or directly endorsing the sale or use of a commercial product or service. The student-athlete may not make any endorsement, expressed or implied, of any commercial product or service. The student-athlete may, however, receive legitimate and normal expenses directly related to such appearance or participation, provided the source of the expenses is the entity sponsoring the activity. A student-athlete participating in media activities may not miss class, except for class time missed in conjunction with away-from-home competition or to participate in a conference-sponsored media day.
126.96.36.199 Use of a Student-Athlete’s Name of Likeness by a Media Entity in Conjunction with Coverage of Intercollegiate Competition and Other Activities. A media entity, or its authorized distributor, may include a student-athlete’s name or likeness in its coverage and promotion of intercollegiate competition and other activities incidental to his or her participation in intercollegiate athletics, provided the student-athlete is not portrayed in a manner as promoting or directly endorsing the sale or use of a commercial product or service. A media entity may feature a student-athlete’s name or likeness in the course of its journalistic coverage of news (and the promotions of such coverage) related to the student-athlete or his or her institution or conference or the NCAA.
NCAA Division I Amateurism Cabinet
August 1, 2011
This proposal is a result of the work of the NCAA Task Force on Commercial Activity in Division I Intercollegiate Athletics. This legislation will help to achieve the balance in intercollegiate athletics that is needed with regard to commercial activities and the use of student-athlete’s names or likeness. This proposal was developed in the spirit of balancing the importance of commercial sponsors in maintaining a comprehensive athletics program and the importance of protecting student-athletes from being exploited by commercial entities. This proposal provides an institution, conference or the NCAA flexibility in developing relationships with commercial entities that benefit athletics programs, while maintaining the principle prohibiting commercial exploitation of student-athletes. The Amateurism Cabinet will continue to evaluate and monitor issues related to commercialism and the use of student-athletes’ names and likenesses and will continue to make policy or legislative recommendations related to such uses. The NCAA Academic and Membership Affairs staff and the Legislative Review and Interpretations Committee will continue to provide interpretations related to student-athlete amateurism. The governance structure ultimately serves as a check on the consistency of such interpretations.
|Feb 25, 2010:||Submit; Submitted for consideration.|
|Jun 25, 2010:||Amateurism Cabinet, Sponsored|
|Sep 30, 2010:||Amateurism Cabinet, Modified the Proposal; Proposal modified to clarify that an institution, individually, or two or more institutions, collectively, may agree to authorize or license a commercial item that includes the names or likenesses of multiple student-athletes, subject to the requirements of Bylaws 188.8.131.52 and 184.108.40.206.1.|
|Jan 13, 2011:||Leg Council Init Review, Forwarded for Membership Comment|
|Jan 16, 2011:||Comment Period; Start of Comment Period|
|Mar 16, 2011:||Comment Period; End of Comment Period; (Official Comment Totals: Support = 0, Oppose = 1, Abstain = 0)|