Gerald Gurney couldn’t have asked for a better birthday present.
On Wednesday, Gurney’s 69th birthday, the NCAA announced its Board of Governors expressed support that would allow college athletes to profit off their names, images and likenesses — something Gurney has been supporting for years.
The Board of Governors has asked Division I, II and III to draft new rules and strive to create new legislation ahead of the 2021-2022 academic year. Athletes would not be paid by universities, but by a third party, allowing there to be no cap on the amount of money to be paid.
Gurney, an OU professor and expert on intercollegiate athletics, is an executive board member and former president of the Drake Group, a group based on defending academic integrity in college sports.
The Daily spoke with Gurney on his thoughts, and what this means for college athletics.
Q: What were your initial thoughts on the recommendation by the Board of Governors?
Gurney: My first thought is, since it’s my birthday, it is absolutely wonderful to have such significant movement toward real college sports reform. I think that the NCAA has made this decision, and I think that it’s important to know that they essentially had a shotgun at their back.
Many states have already approved names, images and likeness legislation. In addition to that, Congress has to take action to ensure that names, images and likeness will be pressed in college sports.
The NCAA is an organization that moves very slowly and is determined to keep every penny it can get excluded off the backs of unpaid labor, which is the athlete.
Today is very significant. The NCAA has finally acknowledged that college athletes and every student has a right to their names, images and likenesses.
Q: What has changed since the NCAA announced they are “starting the process to enhance names, images and likeness” in October to now?
Gurney: Over 30 states have either passed, or began the process of legislating names, images and likenesses. The 30 states committed, and the NCAA does not, that puts them in an awkward position of now allowing them to participate in NCAA events.
In addition to that there has been great interest in Congress by senators. There has been a large amount of congressional interest, and while the NCAA is asking Congress for an antitrust exemption, Congress isn’t looking very likely to give them that without significant changes such as names, images and likeness. It’s not like the NCAA is doing this out of the goodness of their heart. They’re being forced to do it.
Q: When can you expect things to really drastically change in terms of players receiving compensation?
Gurney: In January (2021), the different divisions will come up with various rules based on their own divisions. For names, images and likenesses, but there are large holes in this announcement.
There seems to be an unwillingness on the part of the NCAA to allow gaming such as EA Sports in 2020, where athletes could profit from the obvious use of names, images, and likenesses.
There is also an issue of independent oversight. Who makes the rules whether or not an athlete has violated this agreement? Is it the NCAA? Which is a conflict of interest obviously. Or is it independent oversight of some other independent committee?
Then there’s the issue of the NCAA wanting to go to Congress to get an absolute free pass on future antitrust legislation. I don’t think Congress is ready to do that without a very limited and conditional pass through an antitrust exemption.
Q: Going forward, what are the biggest things that could prevent this from happening?
Gurney: It's very clear that the NCAA is going to allow individual athletes to go out and market themselves so long as they don't use the university logo or identification with the university. They want to do it on their own. That's very clear. That won't be allowed.
But there are all sorts of ancillary questions about, as I said, group licensing, gaming, the use of social media. For example, if a business wants to use an athlete’s social media to put an advertisement on it. Is that a violation? I think the NCAA would view that as yes. So that all needs to be worked out. It's going to be challenged.
Q: Why is this such an important step in moving forward with the compensation of athletes?
Gurney: Mark Emmert, the president of the NCAA has repeatedly categorically stated that by giving in our names, images and likenesses that is tantamount to paying athletes and it is the first step down a slippery slope.
It's a big step because the California legislation started a Legislative avalanche of challenges to names images and the restrictions on names, images and likenesses. So for the first time we’re seeing the NCAA capitulating on the use of names, images and likenesses and that is a major step.
But the barrier has just begun. And the NCAA on the one hand, wants to protect its use of the athletes, names, images and likenesses on broadcasts. And there's another group licensing should an athlete have media rights.
Every time the athletes on a broadcast of a football game are announced, they have a right to them. That's another question that will be challenged by antitrust lawyers. So the battle has just begun and this is an important test.
Q: How is the NCAA going to balance someone in a larger sport opposed to a smaller sport in terms of coverage and viewership?
Gurney: From the viewpoint of an antitrust lawyer, and I'm not a lawyer, that from their viewpoint, they would say NCAA, this is none of your business. You need to stay out of regulating names, images and likeness.
I would say as a college sports reformer, that this is the beginning of the end for the NCAA to have any control whatsoever over this crazy professional enterprise that they've been involved in, and that universities stick to the business of education.
