The Oregon Senate has passed a bill that would allow college athletes to be compensated for their name, image and likeness. A number of other states have passed similar bills, and the NCAA and federal lawmakers are taking up the issue as well. Courtney Cox, an assistant professor at the University of Oregon, explains how all of this will affect athletes in Oregon.
This transcript was created by a computer and edited by a volunteer.
Dave Miller: Unlike professional athletes, college athletes have not been able to profit from their athletic fame. The NCAA has long forbidden endorsement deals, arguing they would taint the purity of amateur sports. That argument reigned supreme for decades, but it has crumbled astonishingly quickly. In just the last few years, 20 states now have laws on the books that would give student athletes the right to be compensated for the use of their name, image and likeness in endorsement deals and appearance fees. Five of those state laws are set to go into effect on July first. Just last week, the Oregon state Senate passed a bill that would add Oregon to that list. Meanwhile, members of Congress from both sides of the aisle seems supportive of some kind of related action at the federal level, and the NCAA says it’s likely going to change its rules soon. For more on this coming sea change in collegiate athletics, I’m joined by Courtney Cox. She is an Assistant Professor at the University of Oregon’s Department of Indigenous Race and Ethnic Studies.
Courtney Cox: Thank you so much for having me.
Miller: Let’s start with the big picture here. How do you explain this gigantic sea change in the public opinion that I just outlined? Because I remember, about 5 or 6 years ago when this issue was talked about, it wasn’t that it was laughed off because serious people were talking about it seriously and it got some traction, but nothing close to what we’ve seen in just a couple years. What happened?
Cox: You know, it’s really interesting. I completely agree. I think that one of the things that has happened, is there’s been a shift in popular opinion that we’re now seeing is going through the ranks of legislation. But I think the court of public opinion has weighed in on this, and that shift, as you mentioned, this kind of scoffing of how athletes at the collegiate level should be compensated, has occurred in the process of all these smaller cases. The O’Bannon case we can think about specifically with the NCAA franchise in terms of video games and E. A. Sports, is a big piece of that -- it becomes a catalyst. But I think it’s also these other moments. It’s the Ohio State football players trading autographs for tattoos. It’s Johnny Menzel selling his autograph. It’s all these smaller moments that are either massive sanctions or slaps on the wrist, depending on who we’re talking about. We can talk about how this is not an even thing. But leading up to these moments, FBI investigations, all these different moments have been small kinds of turns where people are rethinking what’s happening in college sports, They’re bigger and more lucrative than ever. And so now it’s the question of where did the athletes fit into all of this? And I think that’s become louder and louder through all of these smaller moments coming together.
Miller: Do you think that social media has anything to do with this, and the fact that the easier access that college athletes have to talk directly to their fans and to have their lives and their political beliefs will be shared without mediation from the media?
Cox: Absolutely. I think what we call in my field of sports -- media complex, this larger nexus, is the relationship between media properties, and the sports industry more broadly, is really a change. It’s both social media, as you mentioned, this kind of direct access, the way we feel like we have access to athletes, but also about these new media properties like “Uninterrupted”. So Lebron James is media property, the boardroom, the players’ tribune. There are all these spaces where we now feel like we have a direct line to athletes and they’re able to tell their stories in a way that both can be humanizing in a really important key way but also provide openings to understanding what athletes are going through.
Miller: The president of the NCAA. was testifying to Congress just this week and they said if you support this idea, why have you been so slow in making this rule change? Why are you dragging your feet? He didn’t have too much of an answer to that. Do you have an answer?
Cox: I think it’s so fascinating how in such a short period of time that on one of the shows that’s on “Uninterrupted”, there is the episode where Gavin Newsom is signing the California Bill for name image. He talks about this threatening aspect from Emmert and other NCAA folks about what will happen if he signs it. And he mentions this will be the catalyst. We see Oregon is one of several states, the ninth to do so in terms of signing this into law. It’s interesting that once California was on board, all of a sudden there were these other states. There were murmurings about the NCAA wanting to say, of course, we’ve always supported this, but Gavin Newsom was being threatened. There were moments before, and the NCAA has had to completely shift how they’re framing this issue because of this widespread support. They didn’t think they would get through in California. Then once other states jumped on it, it seems 20% of the states are part of this larger movement. And so I think that is what has them shaking in their boots a bit. Is it more complicated than pure greed? Whether it’s now or in the past, the universities are not wanting to forego any potential money that could now go directly to a player as opposed to an athletic program or the NCAA as a whole?
Miller: Is this just about them not wanting to lose the money that is going to them now. I think obviously capitalism plays a part here, but part of what’s baked into this for me as well, is this idea of control; this idea that pushing back, or giving student athletes access to making money or being instagram influencers, creates a slippage in terms of control that the university, a coach, or all these folks will have.
Cox: And so I see a lot of the rhetoric now about what athletes will be able to do that will somehow mark them outside the bounds when every other student on campus can make money off of their name, image and likeness if they choose to do so. It just opens the space up for them. I think part of this is also about control and this idea of what’s at risk. When I hear people pooh poohing this or talking down on name image as a concept it’s is really about having less control over what athletes can do and how they can provide for themselves and their families.
Miller: You mentioned Gavin Newsom being threatened by the president of the NCAA, Mark Emmert. It reminds me that in the coverage of the Oregon bill, it’s been championed in the State Senate by the Senate President, Peter Courtney, a Democrat from Salem, who told the story of being threatened by Mark Emmert, the president of the block. What he said last week was that Emmert called him and said, “please take out the particular provision in this Oregon bill that we have the biggest issue with.” Can you explain? And I should say that Courtney did take it out, So that’s not in the version of the bill that passed with a pretty big margin last week in the State Senate. Courtney says that he still cares about this provision and will pursue it in the future. So what is this provision? And why does he insist to not like it?
Cox: This particular aspect, and I’m going to quote Emmert’s words here. “These aren’t necessarily my feelings about this,” but the biggest issue about this is about royalty payments to members of a team. So think about something like merchandise. Licensed merchandise is a billion dollar industry. We think about royalties, and we start thinking about something like jersey sales and about royalties from said jerseys. There was a huge NCAA shop controversy years ago about this, about the ability for it to be about individual athletes in the NCAA This continuously tells us that it’s not, it’s about these broader collegiate systems and these conferences. And so, the royalty payments, Emmert says, would make college athletes in Oregon employees and thus ineligible to compete by NCAA policies. There are a lot of other things that are involved in our labor that make us employees far before that happens. And so that’s the big piece that’s missing from Senate Bill 5 that Courtney says that later on, he really, really wants to push for. But this idea that making Oregon athletes ineligible was enough of a threat for him to remove it at this point in the game.
Miller: There’s another wrinkle here, which I find to be interesting, which is that if I understand this provision correctly, in a sense, it would have spread the wealth. It would have if the football team, for example the Ducks, were selling jerseys, and the university was getting a piece of all those jerseys that are sold at stores all across Oregon. Then my understanding is that some percentage of that money, probably a small one, but still small royalty checks, would be going to every member of that team, which seems really different than the name image likeness provision, which is still on the books. Or it could be on the books in Oregon if we were to pass the House and on the books in a bunch of other states where my guess is a small number of star athletes in big deal sports would be getting that money. What kind of an equity take do you have on this? On the one hand, it’s really just the way it is right now. It’s only a small number of athletes that are likely to be able to benefit from the provisions that are actually on the books.
Cox: Yes, it’s an interesting question because there are ways that, for example, this really helps athletes in Olympic sports, and that’s because of the stickiness of participating in the Olympics and having to really capitalize on your brand and then thinking, well if I do that, this will make me ineligible to think about what I want to do in terms of my collegiate career. I think it helps a lot of Olympic athletes across sports if, for instance, a swimmer or a gymnast is really able to carry over between college sports and actually compete and represent their country in the Olympics. I think about the ways that it eases the stickiness for certain athletes within that space. And then when I think about gymnastics, I’m thinking of UCLA. Gymnastics have these constantly viral moments where there are really incredible performers such as Catlin Ohashi says in the shop episode with Gavin Newsom. I had this moment as an athlete that I could have capitalized on and I couldn’t because the NCAA told me I couldn’t even as they capitalized on my special moment. And so I agree with you completely that the merchandise and apparel deals and royalties would make sure that the kicker of a team, who may or may not be able to make money, also has the ability to be part of this larger system in a way that these universities are getting percentages of what these students do in terms of the profile of the university. And I think it does offer another form of paying them that I think will again come up and not only Oregon, but other states as well in terms of what kind of equity these athletes are contributing to that they’re not able to access. I think this will be a really important key point, not only in Oregon, but nationally as well.
Miller: If you’re just tuning in, we’re talking right now with Courtney Cox, an Assistant Professor in University of Oregon’s Department of Indigenous Race and Ethnic Studies. And we’re talking about the push in Oregon and around the country to let college athletes get compensated for their work as college athletes. We’re talking about endorsement deals. What are you expecting to see on July 1st? when five states’ laws go into effect for the first time.I guess what I’m wondering is if you think there are going to be college athletes on Wheaties boxes really soon or getting deals from Nike and Adidas, or if it’s going to be more like the sub shop like on some campus main drag or the local pizza place saying, “we’ll give you a little bit of money.” I guess what I’m wondering is how big do you think this is going to be? How quickly?
Cox: I think the first thing that’s going to happen for a lot of institutions is those new pages added to compliance. Already the NCAA compliance with the bylaws of the NCAA are pushing 500 pages.
Miller: And so lawyers are going to be the first people to benefit from these provisions – new life that will be their big day.
Cox: It’s like it’s free agency. It’s like a big opening day of “what are the possibilities?” I think part of it will be more sub shop than folks are thinking. People are having these big thoughts of corruption and all the scandal and wheeling and dealings of these agents that are preying on 18 and 19 year olds. I think that we will have to talk about what’s happening with these contracts because when we think about lawyers, I’m really concerned about athletes signing bad deals or just transferring the ways that they are exploited from the university to the agents and these corporations that might take advantage. I hope that there is a quick study of being able to help athletes leverage their name image and likeness in a way that they don’t find their livelihood, their likeness forever as they constantly do at the college level. I’m really interested in that aspect, but I think it will be local, the local car dealership, the local sub shop, etc. I think that people are thinking so much bigger, and I think there could be that in the long term, but in the short term it’s going to be a lot more commercials selling local insurance with the hometown hero. I think that’s really where we’re going to see that in the short term for sure.
Miller: Are you expecting them to change their rules before July 1? Emmert said that he is recommending that universities sign on to that, but the clock is ticking.
Cox: I’m actually more interested to see what’s going to happen at the conference level because I think that will be interesting when you have a conference comprised of some states who have signed on and some who haven’t. I think it’s going to really trickle down. I think Emmert will push this off on the conferences just like Covid, and I think that this will be an individual conference by conference amendment situation, which will be a piecemeal thing until there is this larger intervention. I don’t know if the NCAA will have something by July 1st. I do think that there is something that they will have to do to address this in their own bylaws very soon.
Miller: Let me ask you, as a college professor, how you feel about this world broadly, because it seems like one of your arguments has been, the athletes are already doing work, and they are doing work in a multibillion dollar business and the they are the people who are making it work, but they’re also not getting paid for it. And so these bills actually remove a fig leaf and let them get money for the work they’re providing. That’s different than saying that this should be a multibillion dollar business How do you feel about the system as a whole? We’re talking not just about student athletes but about students. Is this system a good one?
Cox: Absolutely not. It is not a good system. I think it fails a large group of young folks daily. I think that one of the things about the fallacy of the student athlete as this designation created by the NCAA affects both the athletic side as well as the academic side. And I think as a professor, I’m invested in students getting a quality education. I’m invested in them having a full rich college experience, and I do believe that sport is part of the rich college experience -- in this country specifically. However, I think that one of the issues with this focus on the name, image likeness distracts from other important questions. If we think about the college athlete Bill of Rights, it’s also being discussed at the national level. I think about the issues of health insurance for Athletes and four year scholarships so they can get degrees.
The entire experience of being a college athlete is built upon a system of unpaid labor, and I think, like other systems of unpaid labor, there’s a way we really have to evaluate what this says about us, our investment in college sports. I study sports. I’m part of the system so I’m also implicated as a professor within a system that that employs this unpaid labor. And I just think about the everyday experience of these athletes and all the disparities that they experience. There are these beautiful moments we have in college sports. There are beautiful aspects of the college sports experience for sure. But the NCAA, as it currently operates, is not a system that benefits the college athletes that it employs without pay. I know that that’s a very strong statement, but I believe as someone who studies labor and studies sport, that we have to call it what it is.
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