Name, Image, Likeness, and—Health Care?

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The NCAA has been a lightning rod of criticism over the years, and it wasn’t until the legislative and judicial walls came closing in that they recognized name, image, and likeness rights on July 1. While states began enacting their own NIL legislation, Alston dampened amateurism as an ironclad defense to antitrust scrutiny. Perhaps the public’s appetite for NCAA reform has been satisfied—but it shouldn’t be.

Following a series of football-related deaths, two White House conferences were ordered by President Theodore Roosevelt to ultimately create the NCAA in 1906. The NCAA’s establishment centered around protecting student-athletes from catastrophic injuries, an alarming irony in how the NCAA projects itself today.

Before a 2015 rule change, Power 5 programs could cancel year-to-year scholarships for injury or poor performance. Non-Power 5 programs are still able to do this today, strikingly. Eligibility requirements demand that student-athletes prove they have $75,000 in healthcare coverage of their own, failing to trigger the NCAA’s catastrophic injury insurance until this amount in expenses is met (Wood, 2013, p. 561). Admittedly, most programs assist athletes with medical expenses in some way. This article, nevertheless, is tasked with dissecting the standard of care—if any—that the NCAA maintains for its student-athletes.

A 30-page filing in response to a wrongful death lawsuit in 2013 revealed again that the NCAA adamantly asserts it has “no legal duty to protect college athletes.” Instead, the NCAA bestows this responsibility on its member institutions. We must ask ourselves, considering where the NCAA does choose to enforce rules, what exactly are the NCAA’s priorities? It seems as if the NCAA takes an á la carte approach to safeguarding the rights of athletes, leaving the difficult parts up to the discretion of the schools. A 2008 NCPA request to all D1 institutions sought disclosure of “key medical policies that can affect…student athletes.” Unsurprisingly, 90% of these programs declined to share any medical information whatsoever.

With little to no transparency as to what medical policies each institution has in place, it is even more concerning that only 60 percent of all NCAA revenue is shared with conferences and institutions. In 2010, Power 5 and “Group of Five” conferences brought home over 61% of NCAA revenue that was distributed where the remaining 21 conferences received 38.4% (Lawrence, 2013, p. 29). An overwhelming number of smaller programs are under-resourced as a result, leaving student-athletes within this category disadvantaged when it comes to footing medical expenses. Athletic departments, for the most part, aren’t exactly financial powerhouses—only 25 of 65 D1 athletic departments profited in 2019. With these numbers in mind, schools can legally default to student-athletes’ private healthcare plans when athletic-related injuries arise.

It is hard to imagine that the current structure of paying athletically related medical expenses is pro-competitive in nature, an exemption from antitrust laws. The Court felt differently in Alston under a “rule of reason” standard, and it is my hope that the same fervor behind NIL is given to healthcare considerations in collegiate sports.

References

Wood, K. (2013). NCAA student-athlete health care: Antitrust concerns regarding

the Insurance Coverage Certification Requirement. Indiana Health Law Review, 10, 561-627.

Lawrence, H. (2013). The impact of intercollegiate athletics financial inequalities. Journal of

Intercollegiate Sport, 6, 25-43.