Judge Claudia Wilken’s ruling in O’Bannon v. NCAA was upheld by the U.S. Court of Appeals this past week, confirming that it is illegal to use college athletes’ names, images and likenesses without compensation or their consent. The decision has generated serious concerns regarding its implications on student athletes, the college market and university communities.
“It’s a complicated issue because while you’re using someone’s name and likeness, you’re also getting an opportunity to give education out of it,” Nnamdi Amilo, a seventh-semester molecular and cell biology major and player on the UConn basketball team who was reluctant to comment said. “So I’m not exactly sure where I stand just yet.”
The decision stated that the NCAA’s policy prohibiting member colleges from paying student athletes for the commercial use of their names, images and likenesses (NILs) was a violation of the Sherman Anti-Trust Act of 1890.
The case began when UCLA basketball player Ed O’Bannon was at a friend’s house playing a college sports video game. To his surprise, O’Bannon discovered that one of the avatars in the game bared his resemblance, number, position and uniform, despite the fact that O’Bannon had never consented to the use of his likeness, and furthermore had not been compensated for it.
The NCAA has argued that offering financial aid to student athletes that is not available to regular students violates their policy of amateurism.
“The court’s decision vitiates amateurism. Those who are paid to play are not amateurs, whether they are paid $30,000 or $300,000,” the NCAA stated in an opinion brief to the Court.
Judge Wilken ruled in favor of O’Bannon, stating that football players and men’s basketball players deserved to be compensated for the use of their NILs, stating that not doing so was in violation of the Sherman Anti-Trust Act of 1890 because the NCAA was limiting trade in both the college education and the group licensing market.
Wilken ruled that players should be paid the full cost of attendance as well as a delayed compensation of up to $5,000 beyond this cost. The Ninth Circuit upheld the decision to compensate the players for the cost of their attendance, but repealed the $5,000 statement, concurring that this remedy was “erroneous.”
When upholding last summer’s verdict, the court argued that Division I schools are not required to share revenue, and therefore there isn’t any proof that not paying the players would fund additional scholarships.
Furthermore, the plaintiffs were only seeking permission, not a requirement that schools pay athletes. Therefore, if a school could not afford to pay its athletes, it would not have to.
However, supporters of the NCAA’s policy believes that students, as members of an academic community, do not deserve compensation for the use of their NILs because the profits are being returned to the school and used to benefit the entire community.
While the schools are not being required to compensate their athletes, they are compelled to do so to improve their football and men’s basketball programs.
The ambiguousness of the term “cost of attendance” could allow schools to offer athletes more money to attract them to their schools, writing off the extra cost as an “incidental,” or a cost associated with attending college outside of tuition, room and board.
Mike Enright, UConn’s Associate Director of Athletics/Communications, said he believes that the case will continue to be appealed to higher courts.
For now, “UConn student-athletes receive varying levels of scholarship funds ranging from full scholarship to no athletic aid at all,” Enright said, “Student-athletes are allowed to be given a stipend that reflects what each university has determined to be its own total cost of attendance.”
In the case of UConn, the Office of Student Financial Aid Services has determined that number to be approximately $2,800 per year for in-state students and $3,400 for out-of-state students. However, student-athletes on a full scholarship receive the entire cost of attendance for their participation in athletics, while student-athletes on partial scholarships receive only part of a stipend.
When asked if he felt Wilken’s ruling was fair, Enright said, “the Division of Athletics funds the money for athletic aid and scholarships internally.”
Rebecca Kaufman is a campus correspondent for The Daily Campus. She can be reached via email at email@example.com.