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Name image likeness issues navigate Congress, NCAA and video games – IndyStar

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BLOOMINGTON – In the late 1980s, while he attended Notre Dame law school, Kevin Warren often noted a Sears and Roebuck building he could see from the highway driving west toward Chicago.

Years later, driving by it with his family, he’d remember fondly the excitement he and his siblings felt when their parents would pull out a Sears catalogue and ask the children to pick their birthday presents. But as years passed, Sears contracted, franchises closed and buildings like the one Warren remembered were abandoned, it became in the future Big Ten commissioner’s mind a metaphor:

Change touches everything, even that which you love. Sometimes, it leaves those things behind. If you aren’t prepared to adapt, you will be, too.

“We are currently,” Warren declared at Big Ten media days last month, “in a landscape in college athletics that is changing on a daily basis.”

Very nearly nothing is accelerating that change more than name, image and likeness. And very nearly nothing is making leaders in college athletics more uneasy.

What makes college sports so uncomfortable about the monolithic idea of NIL, compared to all the other disruptive and transformative forces tearing down and remaking the landscape around us? Uncertainty.

Human beings, by nature, crave certainty, but NIL’s future remains uncharted.

As it tugs at the foundations of institutional power, the road map is blurred. There are few obvious landmarks to gain our bearings.

How can NIL become more stable?

Things like realignment, College Football Playoff expansion and even power-conference autonomy come with relatively comfortable timelines and signposts. NIL is a lightning storm rolling slowly across college sports, remaking the landscape wherever it strikes the ground.

But it is not, it’s important to say, out of control, so much as it is out of kilter. NIL created a new market, with new economies of scale, that have been skewed by its rapid evolution in its first 12 months.

Not everything we have seen emerge in this turbulent Year 1 will last. Best practices will be established. Athletes are rapidly gaining a better understanding of what NIL will require of them on one end. After a time, so too will businesses, charities and fans engaged on the other. There will always be outliers and bad actors, but in the aggregate the landscape will find it footing.

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“Really, this whole market needs to settle, but also set. Athletes will become more sophisticated in understanding their value,” said Jim Cavale, founder and CEO of INFLCR. “Businesses, brands, collectives, coaches, everybody on the other side, is going to have to get more sophisticated understanding their value as well.”

Cavale’s company is one of the country’s leading NIL platforms. It provides athletes the means to grow and polish their brand, and helps them connect to potential employers. Its website boasts more than 70,000 athletes active on its app, positioning Cavale at the heart of NIL issues every day.

Across the first 12 months of name, image and likeness, Cavale said he saw the first two of three phases in the evolution of the issue.

First, the compliance phase, as athletic departments tread cautiously into the space, trying to parse NCAA guidance (and in some cases, state laws) to understand what was and wasn’t allowed.

Then came what Cavale called the connection phase, when departments — comfortable enough in their legal footing — came to realize they would be OK at least helping athletes connect in some ways to potential partners.

Now, Cavale said he sees college athletics moving into the third phase: involvement.

“Schools are finally comfortable with saying, ‘We’re going to hire an employee who’s going to help student-athletes with (NIL questions and issues),’” Cavale told IndyStar.

Expect schools to become more involved in NIL in the next 12 months, not less. Already, multiple states in the southeast have amended laws to expressly allow athletic department employees to engage in NIL activity. Current and former college administrators, a year into name, image and likeness as policy, wonder if a more proactive, hands-on approach at the departmental level will curb some of the most casual rule-breaking.

College sports spent Year 1 driving with its hands off the wheel. Now, many — and not just on one side of the conversation — are advocating for doing some steering. As one person deeply familiar with the world of collectives put it to IndyStar, the arm’s length from which athletic departments have held themselves from NIL is getting a lot shorter.

“You’re going to see more of that,” Cavale said.

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Will all this pull what we’re now calling the Autonomy Five further from the NCAA? It’s possible. The association has not majorly revised its interim NIL guidance, issued at the beginning of July 2021, as its rules were amended, and NCAA leaders continue to push for a federal solution that doesn’t look likely.

They aren’t alone, of course. During conference media days last month, more than one A5 commissioner openly campaigned for the same help from Congress.

“I’m a big proponent of name, image and likeness. I am so grateful that many of our student-athletes have been blessed with the ability to monetize their name, image and likeness,” Warren said last month in Indianapolis. “That said, I am disappointed that we still have to operate with these various patchwork laws from a state-level standpoint. We need federal legislation to help put in some guardrails to make it even cleaner, to make sure these name, image and likeness is not used as a recruiting inducement.”

Campaign as they might, these leaders will know privately the odds of that “clean” blanket solution remain long.

Can Congress bring clarity to NIL?

Even as a fresh round of NIL legislation hit Congress in recent weeks, there remains skepticism that the federal government can knit all those state laws together, navigate serious antitrust concerns raised by the Supreme Court’s Alston decision last year and agree on legislation that satisfies all parties. Especially given the conferences and the NCAA would likely push, in any federal law, for an antitrust exemption that would be difficult to square with the Court’s fairly blunt assessment of the NCAA’s position in Alston.

The most telling comment at the commissioner level this summer might have come out of Las Vegas, where embattled Pac-12 leader George Kliavkoff shifted the focus from a federal solution to a conference-level one during his own media days event.

“Antitrust,” he said, “is the reason why the current NCAA rules are not being enforced. The risk of antitrust diminishes when you have a smaller number of conferences, smaller number of schools instituting rules and enforcing those rules.

“That’s why I’m calling for the 10 (College Football Playoff) conferences, the 10 BCS conferences, to focus our attention, as opposed to waiting for the NCAA.”

Kliavkoff’s comment was telling, on several levels.

It was probably the most open a conference commissioner has been about seeking a uniform enforcement solution beyond the halls of Congress, coming from one of two commissioners who traveled to Washington last spring to directly lobby legislators for NIL relief.

It was an open, honest acknowledgement of an important truth: that antitrust concerns — much more so than booster involvement, or football’s perceived power, or the political leanings of college administrators or media — are the No. 1 obstacle to that solution.

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And, if we’re framing this conversation through the lens of where this goes next, it was not the first time Kliavkoff himself raised the idea of the 10 Football Bowl Subdivision conferences pulling further away from the NCAA, and taking more day-to-day governance in hand.

Perhaps the future is not far away where they will have to.

Reporting on our summerlong NIL series has included more than two dozen conversations seeking a wide range of perspectives — from college athletes, coaches and administrators, to compliance personnel, to legal experts, to people living day to day in the NIL space.

Their opinions are as varied as those perspectives. Some cannot see a future that looks anything like the past in college athletics. Some believe a lot of the evolution NIL (and other major issues of the day) is prompting is natural, perhaps even necessary.

Count this reporter on a middle ground between those relative extremes. Some of the forces we’re watching transform college sports will alter their landscape fundamentally. In some key ways, college athletics 10 years from now will scantly resemble what they looked like 10 years ago.

But it’s important to understand what’s driving that. Any wholesale revolution will probably come, again, through the law, not the court of public opinion.

While a California bill meant to enforce revenue sharing between state schools and athletes died in committee earlier this year, a lawsuit, House vs. NCAA, was allowed last year to go forward in District Court in California.

U.S. District Court Judge Claudia Wilken, who also oversaw district-level proceedings in both the Alston and O’Bannon cases, declined the NCAA’s request to dismiss a lawsuit that seeks damages based on earnings the plaintiffs, former Arizona State swimmer Grant House and former Oregon women’s basketball player Sedona Prince, claim athletes were unfairly deprived of by the NCAA’s previous limits on NIL compensation.

Damages in the case, which is scheduled to be heard in 2024, could potentially reach into the hundreds of millions. And any ruling for the plaintiffs would appear to open the door to outright revenue sharing between athletes and schools going forward.

For some, that would be tantamount to the destruction of the core tenets they believe make college sports distinct in American culture. Others say, given the eye-watering financial growth college athletics has seen in the past two decades, it’s past time to have that conversation. Within departments themselves, NIL is increasingly seen as a preamble to more direct revenue sharing and — given the mammoth media rights deals about to be signed by some of the nation’s top conferences — perhaps an increasingly unnecessary inconvenience on the way to that eventual future.

What will be the NCAA’s role in NIL?

Nearly no one interviewed for this story, in any context, believes the NCAA’s top-down governance of college sports will continue unchanged and indefinitely. After years spent pushing questions of athlete compensation into the future, that future has strode loudly and purposefully up to the association’s front door, and begun knocking it down.

“I think there will still be amateur athletics, but it’s going to stratify it in a way that’s almost unrecognizable,” one lawmaker familiar with NIL issues told IndyStar for this series. “I don’t know what the future of the NCAA is. They may well have made themselves irrelevant.”

Still, even as it has threatened long-standing structures within college athletics, NIL hasn’t impacted fan enjoyment or engagement in those sports in ways early critics suggested it might.

According to a Washington Post-University of Maryland poll conducted this summer, 48% of Americans have heard “a lot” or “some” about name, image and likeness issues. Among those who have heard about NIL, 60% reported it “hasn’t made a difference” in whether they enjoy college sports. Even more telling: Among people who reported it has made a difference, respondents claiming it impacted their enjoyment positively outpolled those answering negatively more than two to one (28%-11%).

Perhaps that poll reflects a wider legal, social and moral stance against the NCAA’s definition of amateurism in 2022. Perhaps it speaks to the reality that, while a small handful of six- and seven-figure NIL contracts tend to dominate headlines, the vast majority of college athletes engaged in NIL activity aren’t making more than a few thousand dollars a year, if that.

Or perhaps it’s simply that, as Sonny Vaccaro, the longtime sports marketing executive and power broker in American basketball, put it, “one way or another, in the world I’ve lived in for a long time, (fans) said, ‘I don’t give a damn how these players get here. I just want to see the games.’”

There is no endpoint for this, because there never is. Change happens slowly sometimes, rapidly others. Sometimes, it leads us where we never expected. And sometimes, back to where we once were.

News circulated in June that Electronic Arts, for decades a leader in sport-centric video games, tentatively plans to restart its popular NCAA Football franchise next year. 

Among the company’s top-selling games at its peak, NCAA Football was discontinued in 2014 amid the first prominent modern-day challenge to amateurism, one that actually started with sports video games. Former UCLA basketball star Ed O’Bannon’s 2009 lawsuit was conceived when O’Bannon, who left the Bruins in 1995, realized years later his likeness was still being used in NCAA-licensed video games without O’Bannon receiving any compensation. 

For years, such video games skirted the concept of what we now call name, image and likeness with a familiar solution: numbers, not names. You knew Ohio State’s QB #10 was Heisman Trophy winner Troy Smith, and that WR #7, catching his passes, was Ted Ginn Jr., but not acknowledging that directly helped sidestep questions of legitimacy vs. exploitation. 

As online gaming and file sharing became more widespread, users took matters into their own hands, creating downloadable rosters complete with correct names, heights, weights and even hometowns. To this day, you can still upload and download current rosters built out by dedicated pockets of fans. 

Despite the fact that EA Sports has not produced a college football game since 2014 – and despite the fact that gaming platforms like xBox and PlayStation declined to make those games backward compatible – every fall, if you have the game and an old console, you can still download and play each college football season starting with current rosters. 

If Electronic Arts makes good on its 2023 timeline for a first new college football game in nine years, that underground culture can rest.

When you turn on your console and pull up a roster, you’ll find names, heights, weights and even hometowns – of athletes who will presumably have been compensated for the use of their likeness.

In the strictest sense, it will just be a video game. 

But in the wider cultural significance, an industry that gave us Madden 64, Ken Griffey Jr. Baseball, the FIFA franchise and NBA 2K will in its own way further cement name, image and likeness as what it is: mainstream, and here to stay.

Follow IndyStar reporter Zach Osterman on Twitter: @ZachOsterman.

Source: https://www.indystar.com/story/sports/college/2022/09/01/name-image-likeness-issues-navigate-congress-ncaa-and-video-games/65382016007/