Reclaiming their image: College athletes sue NCAA for cut of profits

Collegiate athletics are big money for most everyone but the players; now a lawsuit could change that

June 10, 2014 4:45AM ET

by Paul Abowd @PaulAbowd

Darius Robinson is working on his image. He recently had a sleeve on his right arm finished at his favorite tattoo parlor near his alma mater, Clemson University, in South Carolina.

But until recently — when Robinson graduated and finished his college football career — his image was not entirely his own.

In order to receive a scholarship to play defensive back for the Tigers, Robinson said, he had to sign away his right to profit from his name, image or likeness. That stipulation is part of the guidelines for amateur athletes set forth by the NCAA.

“I saw the rules that were presented in the NCAA handbook saying since I was a student-athlete, I couldn’t promote anything other than my university," he said.

Former Clemson defensive back Darius Robinson has joined a class-action suit against the NCAA that argues that student-athletes deserve of a share of the billions of dollars they help bring in annually.

Josh Rushing for Al Jazeera America

While Robinson was barred from profiting on his football career, the NCAA was raking in money. Its revenue has spiked 300 percent since 1996, mostly from lucrative television deals.

Now Robinson and other players are suing to attain their full commercial rights — a direct challenge to the NCAA’s business model, which relies on amateur “student-athletes.” Robinson joined a class-action lawsuit, O’Bannon v. NCAA, last year. The lead plaintiff in the suit is Ed O’Bannon, a men’s basketball star at UCLA from 1991 to 1995.

According to Robinson’s lawyers, the NCAA’s rules violate antitrust laws by fixing the value of an athlete’s image at zero.

Players “operate under severe restrictions unlike in any other sports, entertainment, or performative context,” said Sathya Gosselin, an attorney for the plaintiffs. “These individuals don’t enjoy the rights that you and I have to benefit from revenues generated from our name, image and likeness.”

During a deposition in the O’Bannon case, NCAA President Mark Emmert said that college athletes’ participation is “both voluntary and avocational, not professional.”

Emmert added that the NCAA’s soaring revenues actually go back to the student-athletes, supporting athletic scholarships to the tune of $2 billion per year.

Still, athletes generate billions more dollars for the NCAA, its member universities and private companies. Now some of them are seeking a greater share of that revenue.

The athletes’ move for expanded commercial rights — which is the subject of an episode of Fault Lines airing June 21 at 7 p.m. ET/4 p.m. PT — is before a federal judge in a trial that began Monday in Oakland, California.

If the players win, the NCAA will have to change its business model.

“The market would be open for players in a way it was not previously,” Gosselin said.

These individuals don’t enjoy the rights that you and I have to benefit from revenues generated from our name, image and likeness.

Sathya Gosselin

attorney for plaintiffs suing the NCAA

For decades, the NCAA has ramped up efforts to police players’ economic activities. In 2010 the NCAA sanctioned several Ohio State University players, including quarterback and 2010 Rose Bowl MVP Terrelle Pryor, for allegedly trading jerseys and memorabilia for tattoos. Former Texas A&M star quarterback Johnny Manziel came under scrutiny in the summer of 2013 for allegedly taking money at an autograph signing.

Meanwhile, both Pryor’s and Manziel’s jerseys were being sold in their respective schools’ bookstores. Clemson sold Robinson's No. 8 jersey as well.

Robinson, of course, couldn’t make any money off those sales because of the form he signed in order to receive his scholarship. It’s money he could have used while at college.

“I came from a household where both of my parents didn’t go to school,” he said. “So we didn’t necessarily have the type of income to provide my sister with a good education and to be able to help me out whenever I needed it.”

To supplement his scholarship, he started a business at school, working with Enterprise Income, a multilevel marketing outfit. The model relies on the personality of the seller — that is, Robinson’s name, image and likeness.

When the school got wind of Robinson’s enterprise, they shut it down, citing NCAA rules.

“I couldn’t do it,” Robinson said. “I could only play football.”

Former UCLA star O'Bannon echoed Robinson's complaints in testimony given on Monday.

"Regular students could do regular things. You know, get jobs," O'Bannon told the federal court. "Regular students didn't have restrictions like an athlete on scholarship did."

Keeping Robinson focused on football was better for Clemson’s bottom line. The football program is one of the 25 most lucrative college programs in the country. The school makes $17 million dollars a year from a TV deal with ESPN to broadcast its games. Footage from those games is then sold and re-sold as licensed material. Though they are the main draw, the players get no royalties.

I could only play football.

Darius Robinson

former Clemson football player

When Clemson played in and won the 2014 Orange Bowl, sponsored by Discover, the school scored another multi-million-dollar payday. Soon after the game, shoppers at Dick’s Sporting Goods would be able to buy a commemorative DVD for $17.

Some of Robinson’s brightest moments on the field are for sale. The Atlantic Coast Conference owns the footage of his 35-yard interception return for a touchdown against South Carolina State University last season.

Phone messages and an email to Clemson’s athletic department were not returned before publication. However, in a July 2013 press conference, Clemson head football coach Dabo Swinney commented on Robinson’s joining O’Bannon’s suit.

While Darius Robinson was on scholarship at Clemson, he had no rights to his name, image, or likeness. The school, however, sold his No. 8 jersey for fans to buy.

Tyler Smith/Getty Images

"First off, I have zero issues with someone who wants to do that. I would absolutely not be a part of that," Swinney said. "I am 100 percent behind a stipend or enhancing the scholarship. I think that makes sense, and we should give these guys that cost of living."

In a heated interview in April, sports commentator Dan Patrick asked Emmert, the NCAA president, why players aren’t able to capitalize on their fame.

“Any one individual with great recognition and success at the collegiate level, should they want to move on to professional sport, they’ll have plenty of opportunity to be successful and can capitalize on the marketing they’ve developed while in college,” Emmert said.

While Robinson was signed as an undrafted free agent to play for the Buffalo Bills, fewer than 2 percent of college football players will make it pro.

“We don't want it to be as if we’re putting everything on the line, and then not getting anything out of it,” Robinson said. “Because a lot of these guys, when they’re done playing football, they go right back home to where they started.”

The Fault Lines investigation into college sports premieres on Al Jazeera America on Saturday, June 21, at 7 p.m. Eastern time. It will air again that evening at 10 p.m. Eastern and Sunday, June 22, at 2 a.m. Eastern.