Last week, ESPN’s Jay Bilas disproved the NCAA’s position that the sales of team jerseys, which contain a student-athlete’s number, but not his name, do not refer to specific student-athletes. Bilas simply visited the NCAA’s website, typed the last names of prominent players into a search box and the jerseys of those players appeared for sale. Then he tweeted his findings. Shortly thereafter, NCAA President Mark Emmert announced that “we’re going to exit that business immediately” and “we recognize why that could be seen as hypocritical.”
Richard Deitsch of SI.com has an excellent interview with Bilas, who is also an attorney, on the NCAA’s reaction to his tweets. Bilas sums up the legal issue at the heart of this matter, the student-athletes’ right to publicity:
The NCAA office basically said it’s wrong to sell player jerseys, but didn’t acknowledge that it’s wrong because player names, likenesses and publicity rights are tied directly to those jerseys and the players shouldn’t be sold without consent or compensation. Emmert didn’t say, “We’re stopping this practice and so should every NCAA member institution, because we’re selling players and it’s wrong unless they’re compensated.” The schools are still in the licensing business and selling media rights, and players will still get nothing for their value, and everyone will continue with the big business of college sports, as ever. Emmert is in a bad spot. He trots out to justify the unjustifiable and he can’t do it. Nobody can.
The NCAA was clearly caught with its hands in the cookie jar, which is all the more unbelievable considering its involvement in the O’Bannon litigation. Nevertheless, as Bilas points out, the NCAA’s move is hollow as schools continue to sell jerseys based upon the likenesses of its amateur student-athletes.