First Amendment in College Sports - Fordham Intellectual Property, Media & Entertainment Law Journal
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First Amendment in College Sports

First Amendment in College Sports

This January, in a first of its kind move, a group of athletes on the Northwestern University football team announced that they planned to unionize. This move, which primarily seeks medical coverage for sports related injuries, is a major statement by college athletes in the ever-increasing hostilities between current and former college athletes and the National Collegiate Athletic Association (“NCAA”). For some time now current and former NCAA athletes have raised awareness to the claimed inequity in collegiate athletics which consistently produces enormous revenue for schools and athletic conferences, without any compensation for athletes.    

The NCAA has held firm that “student athletes” (a term it has used since 1953), should not be eligible to receive any compensation for their athletic involvement, and should not be treated in any way as employees. Yet, as the NCAA fends off a growing chorus of support for the rights of college athletes, it faces a class action lawsuit in the Northern District of California brought by current and former college athletes in the pursuit of, among other things, compensation for the use of their likeness and publicity.

In the lawsuit, titled In Re NCAA Student-Athlete Name & Likeness Licensing Litigation, the NCAA has gained the support of a very powerful ally in the form of an Amicus Brief from Fox Broadcasting Company. In that brief, Fox warns that a successful lawsuit by the student athletes would in essence require the express consent of every athlete, cheerleader, or other person who has their likeness on television. If one of those people chose not to give their consent Fox would be unable to broadcast the sporting event.

The crux of this issue lies however, in the definition of whether the collegiate sporting events are commercial activities. It is of course uncontroversial that Fox and other broadcasting companies receive revenue through the broadcast of collegiate sporting events. Fox, however, frames the issue very differently. It states that the revenue that these broadcasts generate is not the dispositive factor in determining if speech is commercial in nature. In fact it claims that its broadcasts are in actuality just the reporting in real time of news that is of “great public interest,” which if classified as such would afford broadcasts great First Amendment protection. Fox quoted the Supreme Court when it stated:

Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public. Snyder v. Phelps, 131 S.Ct. 1207, 1216 (2011).

This case ultimately implicates important public policy concerns relating to the First Amendment. It is clear that the broadcasters generate revenue with and through the use of uncompensated student athletes, yet on the other hand, the First Amendment demands that a free flow of news is circulated throughout society so an educated citizenry can control its own progress. On some level, we must balance these competing interests, and ask ourselves what is the value socially, and more importantly, for our democracy, of college athletics, and whether that value outweighs the seeming inequity to the college athlete.

Joshua Kravitz

Joshua Kravitz is a second year law student and a staff member of the Fordham Intellectual Property, Entertainment and Media Law Journal. His interest in IP, Media, and Entertainment Law stems from his interests in politics and journalism. In his spare time he enjoys following the New York Mets, Knicks, and Jets.