For some reason, the quote function isn’t working, otherwise I would quote and discuss. I’ll paraphrase instead, and I ask that you forgive any inaccuracies. It isn’t deliberate.
Some of the things you wrote about seem speculative. For example, you talk about schools supposedly pressuring players to allow the use of their image for undefined marketing. In my experience, being the picture that is being used to promote the team is a complement, or a recognition, rather than a seizure of property right. It’s not as if the student is forced to grant an exclusive license when doing so. It seems to be an underlying assumption in your analysis that the participation in a televised broadcast or in an ad for tickets, somehow is a forfeiture of right by the student. I think that is a strained interpretation.
Keep the police officer analogy in mind because I think it’s useful. Prior to the current NIL structure is student athlete was free to profit off their image, so long as that was not derivative of their collegiate, athletic activity. So, if a student wanted to model, like the police officer, they would be able to. But if they wanted to model in their school uniform, that would be prohibited. Likewise, if their modeling was contingent upon or derivative of their athletic status that was considered an impermissible benefit. If you think about it, there is some logic to this approach and it is very analogous to the police officer situation. The individual doesn’t forfeit their rights to profit off their image, but they are not allowed to leverage their affiliation, in one case with the police department, in the other case with the college sports program. That is not a taking from the student. Instead, it is a prohibition on their leveraging their amateur athletic status.
When you ask “what is the legal authority for that?”, I guess the answer is the constitutional right to free association. Anytime you join an organization, the organization has the ability to place constraints on your participation. The NCAA never said you may never profit from your image, instead they said, if you choose to try to profit from your image in a way that is derivative of your college athlete status you won’t be allowed to participate in our organization. That’s not an unreasonable, and certainly not an unlawful, position.
Is that helpful?
Thanks for this. It may be the clearest explanation of the issues I've heard. Just a clarification to offer on a couple of points:
-- in the second paragraph, you're right that my answer was mostly speculative, but the question of whether students (any students) feel pressure to go along with photo-ops for admissions brochures, etc. is not. I've spoken to students of mine about this and asked them how they agreed to it, and they've said just this, that "school spirit" was invoked. Now I don't mean they were threatened, or that it was mean spirited. More like cajoled. This seems separate to me from the question whether they gave up some property right. They clearly did so willingly -- I've never said otherwise -- so no laws were broken, even though releases were not signed. I might say that my answer was atmospheric rather than speculative. Also, for most students, photographic images of them don't have much value based on who they are, so the property at issue is trivial, technical at best.
-- the third paragraph is the really interesting one for me. Leveraging their affiliation with an institution seems like a brand or property right consideration that runs in the opposite direction -- it's the school's property, not the student's that is being converted there. In fact this possibility is where this entire thread took the turn to where we are now. I said way up above that there are probably limits (iirc) on the use of school logos and other school identifiable imagery in any NIL work. You put it as "leveraging their amateur athletic status," and this is the one point where I don't follow you. Bear in mind that as a member of the academic faculty of a college, I am dubious of the very existence of scholarship sports at any educational institution. I also love to watch them, which means I am a contradictory fellow. So I tend to pose the question like this:
is any part of their "amateur athletic status" somehow not their property? They get their opportunity and some of their training from employees of the school. The school has invested in them. But the school only has an athletic program that is in any way marketable due to their talents and efforts.
Is it entirely clear who is leveraging whom in this case? If my question indicates a valid dilemma, I wonder how it can be solved. I suspect the term "amateur" isn't really relevant here, since it is not indicative of any property at issue between the student-athlete and the school. If I'm right, then we're left with their athleticism, which is in some sense a shared property as I just suggested. Are we looking for a Solomon to "divide the baby" or should we try to decide whose contribution to the shared property (the actual games played and televised and all the images derived therefrom) is prior and more essential?
The interesting thing is that we don't have to, because students have not made a profit-sharing claim on the TV revenues. All they've sought and finally attained is the right to profit from the celebrity their athletic achievements have earned them. They've ceded all the other property to the NCAA and the schools.
-- similar perplexity about the fourth paragraph: "The NCAA never said you may never profit from your image, instead they said, if you choose to try to profit from your image in a way that is derivative of your
college athlete status you won’t be allowed to participate in our organization." Something about this doesn't exactly ring true for me, but that may be because of my ignorance of legal issues. Their "college athlete status" doesn't seem to me to belong to the schools or the NCAA for the same reasons as above. It depends on their being a competitive league, and coaches, and related staff, even an entire athletic department, to be sure. But those people and those departments are mutually dependent on the students and their talents. In the bad old days, when they were specifically not permitted to profit from their celebrity, the NCAA was saying something very like "you may not profit from your image, but we can."
I guess much of this depends on how we understood what a student athlete is and whether this represents a property that can be claimed exclusively by the school. I'd think not, but I may well be wrong in my reading of this. Or, I may be "theologically" correct but no court of law would ever hear it the way I do.
It also speaks several different languages and is very easy for the listener to understand. 