What’s in a Name? The Collegiate Mark, the Collegiate Model, and the Treatment of Student-Athletes

The amateurism principle, by which student-athletes are ineligible for collegiate competition if they capitalize financially on their athletic skill or reputation, is a mainstay of college athletic competition. It has two general justifications. First, it underscores that those who compete on a university athletic team must be students at that university in more than name only. Second, it maintains college athletic competition as a "mark" separate from professional sports, thereby insulating fan interest, donor support, and revenue streams.The revenue-driven commercialization of intercollegiate athletics programs embodies an increasing disconnect between athletic department budgets and the money spent on bloated coach salaries and extravagant athletic facilities when contrasted with NCAA limits on benefits that may be provided directly to student-athletes as well as on how student-athletes independently might market themselves. The result is a cacophony of complaints that college athletics are not amateur athletics but, instead, are big business divorced from the campus ethos, at least at the major NCAA Division I Football Bowl Subdivision (FBS) schools and at least in the revenue sports of football and men’s basketball. In turn, critics reject the idea that a full ride athletic scholarship, plus the educational and lifetime economic benefits of a university education, appropriately cabin the full economic scope of what men’s basketball and football student-athletes are entitled to derive from their college careers and their athletic participation. As these critics see it, the genie is out of the bottle and the amateurism principle must give way.The debate roiling over the uncompensated use of student-athlete names and likenesses so far has been long on platitudes and on easy, less than fully considered, answers but short on data or on any close analysis of what the NCAA, conferences, and member universities currently do or might need to be able to do; exactly what benefits currently are provided to student-athletes; the value of football and men’s basketball student-athletes independent of the universities for which they compete; and the practical and legal impediments to implementing some of the solutions proffered to provide additional funds to student-athletes either while they are still eligible to compete or after they have exhausted eligibility.Our purpose in the Article is to fill that void by providing a comprehensive examination of these issues that includes examination of the impact of the federal tax laws, the laws governing the creation and administration of trust accounts, and Title IX; as well as an econometric model of the value of football and men’s basketball student-athletes. We also consider whether changes might be made in the treatment of student-athletes that would better match the 21st Century university and the modern contours of an FBS athletic program and yet still preserve the essential nature of the collegiate model. More particularly, we consider whether compensating student-athletes for the value of their names and likenesses could be accommodated in the collegiate model without producing a paradigm shift with impacts so substantial as to be its death knell.