A Survey of College Athletes Seeking Compensation - Fordham Intellectual Property, Media & Entertainment Law Journal
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A Survey of College Athletes Seeking Compensation

A Survey of College Athletes Seeking Compensation

College athletes have sought compensation for their likeness for a number of years. Most of this action has occurred in the courts, but recently the athletes may have found another avenue through which to seek compensation. One notable case is O’Bannon v. National Collegiate Athletic Association, which saw progress for the athletes but was limited in its remedies.1 The case featured former college athletes seeking compensation for the use of their name, image, and likeness in connection with video games.2 While the Ninth Circuit decision did contain some victories for college athletes seeking compensation, some thought the remedies would be greater.3 The court there held, among other things, that the district court erred in finding it viable to allow students to receive cash payments for their name, image, and likeness untethered to their education expenses.4 Both sides appealed to the Supreme Court, but the Court declined to hear the case.5

Subsequent case law has continued to push the result in O’Bannon. For example, In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig., featured former student athletes who challenged the rules limiting the compensation they could receive.6 In that case, the court held that the NCAA can limit certain kinds of payments to students, but it cannot limit compensation and benefits related to education.7 The NCAA filed an appeal of this decision in March.8

The courts are not the only area in which this fight is taking place. In California, the California State Senate Passed SB-206.9 The bill states, “A postsecondary educational institution shall not uphold any rule, requirement, standard, or other limitation that prevents a student of that institution participating in intercollegiate athletics from earning compensation as a result of the use of the student’s name, image, or likeness. Earning compensation from the use of a student’s name, image, or likeness shall not affect the student’s scholarship eligibility.”10 The bill would allow athletes to be compensated for their likeness, something that athletes have been seeking in all of the aforementioned cases.11 The bill garnered national attention with support from notable athletes such as LeBron James12 and Draymond Green13 The NCAA and others were more critical of the bill.14 Notably, Long Beach State athletic director Andy Fee expressed concern over the NCAA taking actions against California schools.15. On Monday, September 30, Governor Gavin Newsom signed SB 206. 16 The Act will take effect on January 1, 2023, and will allow California Student Athletes to earn money from their name, image, or likeness. 17 Athletes will also be able to hire agents and will not lose scholarships should they receive income for work.18 The NCAA issued a response, which cites the confusion among many states with laws on athlete compensation, and the need for the NCAA to be the rule-makers in the space.  19

California is not the only state to introduce legislation that would allow for compensation for use of a player’s likeness. Recently, Washington also introduced similar legislation.20 The Washington legislation provides that “every student enrolled at an institution of higher education within the State of Washington should have ‘an equal right’ to earn compensation for services provided; to be paid for the use of his or her name, image and likeness, and to hire agents to represent the student’s interests.”21 Commentary suggests that the Washington bill may not have the same level of support as the California bill.22 It remains to be seen what the next steps are for athletes, but legislation like this is worth monitoring.


  1. Michael McCann, In Denying O’Bannon case, Supreme Court Leaves Future of Amateurism in Limbo, Sports Illustrated (Oct. 3, 2016), https://www.si.com/college-basketball/2016/10/03/ed-obannon-ncaa-lawsuit-supreme-court.[https://perma.cc/Q6RH-7KYF]

  2. Id.

  3. Id.

  4. O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049 (9th Cir. 2015).

  5. National Collegiate Athletic Ass’n v. O’Bannon, 137 S. Ct. 277 (2016).

  6. 375 F. Supp. 3d 1058, 1062 (N.D. Cal. 2019).

  7. Id. at 1101-02.

  8. Timothy Gray & Robert LoBue, Update: NCAA Loses in Suit Challenging Student-Athlete Compensation and Benefit Limits, Prepares for Appeal, JD Supra (Apr. 8, 2019), https://www.jdsupra.com/legalnews/update-ncaa-loses-in-suit-challenging-28597.[https://perma.cc/A5AM-FWUV]

  9. S.B.-206, 2019-2020 Leg. Sess. (Cal. 2019)

  10. Id.

  11. Id.

  12. LeBron James (@KingJames), Twitter, (Sep. 5, 2019 8:21 AM), https://twitter.com/KingJames/status/1169631712009080832.[https://perma.cc/ZD5E-TG9M]

  13. Draymond Green (@Money23Green), Twitter, (Sep. 9, 2019 9:10 PM), https://twitter.com/Money23Green/status/1171274680319148033?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1171274680319148033&ref_url=https%3A%2F%2Fclutchpoints.com%2Fwarriors-news-draymond-green-reacts-california-bill-allowing-college-athletes-paid%2F. [https://perma.cc/A7A7-5X6X]

  14. Melody Gutierrez and Nathan Fenno, California Would Allow College Athletes to Profit from Endorsements Under Bill Sent to Newsom, L.A. Times (Sept. 12, 2019), https://www.latimes.com/california/story/2019-09-11/california-college-athletes-endorsements-bill.[https://perma.cc/JNU9-3VSZ]

  15. Id.

  16. Office of Governor Gavin Newsom, Governor Newsom Signs SB 206, Taking on Long-Standing Power Imbalance in College Sports (2019)

  17. Id.

  18. Id.

  19. NCAA Statement on Gov. Newsom Signing SB 206, NCAA (Sep. 30, 2019, 10:44 AM) http://www.ncaa.org/about/resources/media-center/news/ncaa-statement-gov-newsom-signing-sb-206

  20. Gregg E. Clifton, New Legislation Proposed In The State of Washington Pushes For Student-Athlete Compensation In Defiance of NCAA Bylaws, Jackson Lewis (Jan. 10, 2019), https://www.collegeandprosportslaw.com/uncategorized/new-legislation-proposed-in-the-state-of-washington-pushes-for-student-athlete-compensation-in-defiance-of-ncaa-bylaws.[https://perma.cc/N8A6-YV69]

  21. Id.

  22. Larry Stone, Washington State Rep’s Bill to Pay College Athletes Unlikely to Pass, but It’s a Step in the Right Direction, Seattle Times (Jan. 11, 2019), https://www.seattletimes.com/sports/uw-husky-football/washington-state-reps-bill-to-pay-college-athletes-unlikely-to-pass-but-its-a-step-in-the-right-direction.[https://perma.cc/NW7Z-83W8]

Nathaniel Liebes

Nathaniel Liebes is a second-year J.D. candidate at Fordham University School of Law and a staff member of the Intellectual Property, Media & Entertainment Law Journal.