Amateurism and the NCAA: The Controversy (a Legal Review)

The NCAA has experienced controversy for many years now, but it may have another issue to grapple with because of their “amateurism” clause. Many student-athletes are concerned about the NCAA amateur clause and its impact on their “right of publicity”. The NCAA has consistently argued that athletes should not be paid because they are in fact students and are most likely on scholarship, either academic or athletic. Additionally, student-athletes are claiming that their intellectual property rights are being violated in “fair trade” and the unfair use of “image likeness” in the NCAA video game issue brought forward in the Ed O’Bannon case. This case is potentially the turning point in this dispute, which has been defended by the NCAA and their use of amateurism clause. With that, the amateurism clause and intellectual property rights are all integral facets of this research project. The issue with intellectual property has been increasing in the recent history of the NCAA. Lawsuits such as the Jeremy Bloom and Ed O’Bannon cases have been troublesome for the national governing body of college athletics. Athletes claim that the NCAA is breaking antitrust laws because the organization is using their images and likeness’ for commercial use. Section one and two of the Sherman Antitrust Act prohibits action restraining trade in a relevant market and prohibits conduct enabling an organization to hold a monopoly over the relevant market. The NCAA prohibits student-athletes from receiving any money from their image or likeness because of the amateur clause. The cases of Bloom v NCAA and O’Bannon v. NCAA are two essential resources for this research project because both are important when discussing the issue of intellectual property rights and the amateurism clause. Bloom v. NCAA is a case that involves a University of Colorado football player who also skied. To support his skiing career, Jeremy Bloom received endorsements, modeled, and participated in social activities that brought in money. Ed O’Bannon sued the NCAA for using his name and likeness in a video game. He argued that upon graduation the NCAA should be compensating athletes for using their image and image “likeness” for commercial use. While this research project will discuss a small piece of the intellectual property puzzle, it will provide insight into the amateurism clause and attempt to answer to whether athletes should be paid for their intellectual property and image likeness