NCAA Expert Witness Tackles Issue of Paying Athletes for ‘Name, Image and Likeness’ Usage

The class action lawsuit against the NCAA continues, and this week the college sports association brought in an economics expert who carefully inserted the phrases "name, image and likeness" in his definition of pay-for-play during his testimony. On Thursday U.S. District Judge Claudia Wilken asked questions about it during the trial. During his testimony she asked economist David Rubinfeld why he kept using the phrase "pay for play" when referring to student athlete payments.

"I'm having trouble with the use of the term pay for play. Do you include in that the use of pay for name, image and likeness?" Wilken asked, interrupting Rubinfeld after he'd said: "The market has spoken. There are lots of amateur institutions and none of them allow pay for play."

Rubinfeld said that, in his mind, they are the same thing.

The issue is an important one in the class action suit led by former student athletes and former UCLA basketball player Ed O'Bannon, who claim they should be paid for the use of their names and images in TV broadcasts. The video game portion of the lawsuit against EA for its various sports video games has already been settled, but the class is looking for the NCAA to hare in the revenue from television broadcasts.

Rubinfeld said that other collegiate athletic associations, high school associations, and amateur sports leagues disallow compensation as part of their tenet of amateurism.

During his testimony he also trumpeted the "pro-competitive benefits" of NCAA rules that prohibit payment to student athletes beyond the cost of attending school. He said these rules are important because they increase the number of teams in games, the popularity of college sports and the general happiness of fans. He claimed in his testimony that if those restrictions are lifted as the O'Bannon class asks it would "reduce output" and "harm consumer welfare."

"It's likely that output would diminish if those rules were changed, because we would be in a world where there was pay for play and that would lead to competition that would have some schools choosing to pay substantial sums to recruit athletes and some schools choosing not to participate for financial or philosophical reasons," he said.

When asked if payments were for name, image and likeness rights, would his answer be any different, he said simply, "no."

Wilken stopped Rubinfeld to ask the NCAA attorney about competitive balance – the argument that bigger and richer colleges would end up winning more games and hurting competitive balance.

"Payments to the players wouldn't make the school have less money," Wilken said. "It might be allocated differently, but they wouldn't have any more or less money."

He answered: "All it would do is show the cash payments that would go to the student athletes for their NIL [name, image and likeness] rights, if the rules were changed as the plaintiffs are asking. So they would pay cash."

"The resources will be the same but in the world we're describing more money would be available to recruit athletes directly. This is a prediction about the future, which economists do all the time."

On cross-examination, Rubinfeld insisted that the NCAA is not some sort of cartel, referring to it as more of a "joint venture."

We will have more on this case as more information becomes available.

Source: Courthouse News

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