The Pac-12 Wants to Let College Athletes Own Their Identities, Except When It Comes to Sports

As the National Collegiate Athletic Association maintains its hardline position that college athletes do not and should not own their own names, images, and likenesses (NILs) when it comes to commercial activity, the Pac-12 conference is considering a change that would bring athletes one step closer to enjoying the same basic economic rights as everyone else.

Under the Pac-12 proposal, college athletes would own their NIL rights and would be able to promote themselves—except in the case of athletically related endeavors..

That might seem unfair—after all, elite playing skill is why most college athletes have value in sports-loving America in the first place—but it would be a gigantic step for the NCAA. For the first time, athletes would enjoy a limited right to profit off their own talents, rather than being forced to surrender control of said profits to their schools.

"Over the last six months, as a result of having conversations with student-athletes themselves, this was one of about half a dozen issues that emerged as something that would be seen as helpful," Pac-12 commissioner Larry Scott told VICE Sports.

For all intents and purposes, schools currently own college athletes, and not just as athletes—as people. Under current NCAA amateurism rules, if an athlete wanted to start, say, a graphic design business, said athlete wouldn't be able to put their name on the business at all, even if it had nothing to do with their athletic ability.

"I've got a track kid who's huge into sneakers," University of Arkansas compliance director Will Landreth said. "He loves sneakers and refurbishing them. He'll buy them and repaint them, but currently he has to make a new Twitter handle and everything, and nothing can be associated with his name or business."

Examples of how and why this is a stupid standard—a stupid standard even if you believe that amateurism is noble and just—abound. A few years ago, former University of Richmond basketball player Jonathan Benjamin turned an entrepreneurial business class project into a clothing company, and was promptly ruled ineligible for using himself as a model for his self-designed activewear. Around the same time, University of Minnesota wrestler Joel Bauman lost his eligibility for selling a rap song.

To its credit, the Pac-12 recognizes that stories like these are patently absurd; to its detriment, the conference draws the NIL line at sports.

"The idea is they should not be able to trade on their athletic identity," Scott said.

Of course, Scott's statement raises a larger question: Why shouldn't athletes be able to trade on their athletic identities, too? Especially when every other famous person in America is allowed to cash in on the talent that makes him a celebrity?

From the Pac-12's perspective—and likely the NCAA's perspective, as well—allowing college athletes to reap full NIL rewards would act as a slippery slope, pushing amateurism down the hill and off a cliff. NCAA lawyers argued as much during the O'Bannon trial, which was centered around athlete NIL rights, and in a perverse sense they were correct: the entire underlying justification for amateurism can be summed up by former association president Myles Brand's statement that athletes can't be paid if they're amateurs, and they're if amateurs then they can't be paid.

Only within that semantic cul-de-sac do limited NIL rights make sense; only within the crazy-quilt economic logic of college sports does continuing to forbid athletes from accessing the primary source of their publicity value seem like a reasonable idea, as opposed to outright exploitative trolling.

When asked I asked Scott if he felt bad about making more than $3 million some years, largely off the backs of athletes who can't keep any money for themselves, he replied with a non-answer.

"I believe deeply in the amateur model," Scott said. "I was a student-athlete myself at Harvard. We've got 7,000 student athletes, who I feel like benefit greatly from the collegiate model and amateur model, and I'd be very concerned about any different model."

Well, what else could he say? There is no good answer. When college sports decision-makers mildly liberalize the financial restrictions they place on athletes—permitting cost of attendance stipends; re-allowing four-year athletic scholarships—they do so at legal and public relations gunpoint, and only in an effort to preserve their overall power.

Loosen up on the nonsense. Maintain a stranglehold on the money. That's the NCAA's playbook going forward. Maybe that will work; maybe federal judges and the National Labor Relations Board and college sports fans don't really care that amateurism denies athletes economic rights that are otherwise protected under the Sherman Act. Maybe they just don't want to hear Shabazz Napier complain about being hungry.

But maybe not. Rather than smooth over the inherent inequities of big-time campus sports, there's a chance that the Pac-12's proposal could highlight them. How so? Think back to evidence presented during the Northwestern University unionization case. Big-time college football is a full-time job and then some, a 40-plus hour-a-week grind that a regional National Labor Relations Board director determined qualified as employment. The average football player doesn't have time to run their own side business.

Now, suppose it's the Pac-12's non-revenue sport athletes—who aren't forced to spend as much time on their sports because those sports aren't money-makers— who end up taking advantage of the liberalized rules. Pretty quickly, that will re-raise a question the national office of the NLRB declined to take up: why aren't football players considered school employees, with a right to unionize and bargain over wages and workplace conditions? DeflateGate lawyer Jeffrey Kessler already is aiming to take down college sports amateurism in federal antitrust court through some the same ideas; allowing Pac-12 athletes to cash in on their NILs in such arbitrary, unhelpful fashion could give him additional ammunition.

The Pac-12's proposal is unquestionably good. It opens up more opportunities for college athletes, opportunities that they should have enjoyed long ago, same as other students and other American citizens. But it also makes the fact that athletes are still being shut out from equal opportunities even more questionable.