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Cabinet sponsors possible amendments to likeness proposal

The Division I Amateurism Cabinet has sponsored three potential amendments to its proposal to change the rules regarding the use of student-athlete likenesses in promotions.

The original proposal, No. 2010-26, is in a comment period until March 16. The Legislative Council will cast its final votes in April.

Prop. No. 2010-26 aims to accommodate advancements in technology and facilitate more authentic promotions associating schools with their sponsors while maintaining the Association’s fundamental principles that prohibit commercial exploitation of student-athletes.

The proposal, which follows the principles developed by the 2008 Presidential Task Force on Commercial Activity in Division I Athletics, continues many of the safeguards contained within the current legislation, which allows the use of a student-athlete’s name or likeness for promotions, advertisements and media activities if specific conditions are met.

Among current conditions carried over into the new legislation are:

• Student-athlete permission.
• Athletics director approval for each activity
• No missed class time.
• No endorsement of a commercial product or service.

The proposal takes those core requirements and adds refinements, including the following:

• Promotional activity by a sponsor of an institution, conference or the NCAA must clearly identify the commercial entity’s sponsor affiliation (for example, an official sponsor of the institution or event) when student-athlete images are shown.
• Promotions that include alcoholic beverages, tobacco products or gambling interests are not permitted.

The cabinet opted to sponsor a range of different alternatives, from a proposal that would most closely mirror current legislation with some updating to a proposal that would be similar to Prop. No. 2010-26.

Cabinet chair Mike Rogers, faculty athletics representative at Baylor, said providing the membership with several different alternatives is most likely to create change in this area, even though he said the cabinet continues to support its original proposal.

“We are not backing away from the legislation we proposed (initially),” Rogers said. “We recognize that the governance structure is a deliberative body, and reasonable minds may differ. The paramount issue is getting some legislation passed that assists our institutions with how to responsibly use student-athlete images beyond schedule cards and posters.”

The membership is currently operating under a Board of Directors directive that allows discretion to reasonably apply the standards from the 2005-06 legislative proposal meant to address student-athlete likeness in authorized promotions that include the use of technology not contemplated when the legislation was written many years ago (for example, new media) but which are within the spirit of the rules.

If some form of Prop. No. 2010-26 (amended or not) is not adopted, the current legislation will remain in effect without language allowing for expanded co-sponsorship of  promotions by a member institution, charity, educational or other nonprofit organization that wants to feature student-athlete images. The 2005 proposal was tabled, and the issue was further studied by the NCAA Task Force on Commercial Activity in Division I Athletics. The original 2010-26 would codify the recommendations found in that report.

Amendments would:

• Under 2010-26-3, maintain current legislation in all areas except as it relates to co-sponsorship of institutional, charitable, education or nonprofit promotions. This amendment would codify the Board of Directors directive that allows student-athletes to participate in such promotions, as long as certain conditions are met. The institution and student-athlete must approve participation in the promotion but the institution may exercise discretion and autonomy in approving the co-sponsorship. There may not be any endorsement or direct promotion of the co-sponsor’s products or services. The amendment also includes changes to the media-activities provision from Prop. No. 2010-26, eliminating the distinction between activities that occur during the playing season and those that occur outside the playing season.
• Under 2010-26-2, maintain all the provisions of Prop. No. 2010-26, except as it relates to commercial advertisements or promotions that include the names or likenesses of student-athletes. This amendment would maintain the current legislation, which permits only congratulatory commercial advertisements. This alternative would continue to: (1) permit the expanded co-sponsorship of institutional, charitable, education or nonprofit promotions; (2) permit the sale of institutional commercial items through institutionally approved outlets; (3) permit the commercial establishments to be co-sponsors of institutional, charitable, education or nonprofit promotions that occur at the location of such establishments; and (4) eliminate the distinction between activities that occur during the playing season and those that occur outside the playing season.
• Under 2010-26-1, maintain all the provisions of Prop. No. 2010-26 except as it relates to commercial advertisements or promotions that include the names or likenesses of student-athletes. This amendment would clarify that the primary purpose of any commercial advertisement or promotion must be to publicize the commercial entity’s affiliation with the institution, conference or the NCAA, rather than to market or sell its products or services. This was the original intent of 2010-26, but 2010-26-1 offers additional clarity to limit the scope of the advertisement or promotion. The amendment would continue to: (1) permit the expanded co-sponsorship of institutional, charitable, education or nonprofit promotions; (2) permit the sale of institutional commercial items to occur on any institutionally approved outlets; (3) permit the commercial establishments to be co-sponsors of institutional, charitable, education or nonprofit promotions that occur at the location of such establishments; and (4) eliminate the distinction between activities that occur during the playing season and those that occur outside the playing season.

The Council will review the proposed amendments at its April 12-13 meeting in Indianapolis.