Chances are that most members of the Sports Information profession haven't heard of NCAA Legislation Proposal 2005-99. Of the 27 legislative amendments that are facing the membership prior to the Management Council's April meeting, it is likely the most important to the media relations field.
The passage of 2005-99 will eliminate a grey area in the NCAA rulebook and will allow institutions to designate a third party to sell photographs of student-athletes in the same manner as the sale of highlight films and media guides.
At the NCAA Management Council meeting on January 8, the Amendment got overwhelming support (33.5 Yea, 17.5 Nay) and came within one vote of going to the Board of Directors, where it would have likely been approved. It has now been placed in the open 60-day comment period, which closes on March 11. Support for the amendment during this critical comment period is paramount. Institutions must take the time to express support for the amendment during the comment period to help ensure its passage.
The History
"Wait a minute," you might be saying. "We have had a photographer take our team mug shots or action shots and then sell them to the student-athletes for years now." Well, if you have done that, depending on how your compliance officer interprets the rules, your institution may be in violation.
Most of the schools in the Big West Conference, and many schools across the nation, have some sort of agreement with an outside photographer. The photographer comes to specific events and takes photos for the use of the athletics department on web sites, media guides and other publications. But, as part of the agreement, the photographer is also permitted to place the photos on a third-party web site, where the student-athletes, their family and friends can view and purchase the photos. Allowing the photographer to sell the photos offsets the cost of having a professional shoot the event, thus saving the already thinly stretched budget of the athletics department.
It is when those photos are placed on the third party web site of the photographer, the student-athlete or the institution may run afoul of NCAA Bylaw 12.5.1.1, which deals with "Institutional, Charitable, Educational or Nonprofit Promotions", which reads in part that the sale of such photographs must be sold only at the member institution at which the SA is enrolled, institutionally controlled (owned and operated) outlets or outlets controlled by the charitable or educational organization (subsection h). Further, all moneys derived from the activity or project must go directly to the member institution (subsection e).
The question of "may" falls in the interpretation of the bylaws by the NCAA. An official interpretation in early 2005 made it clear that an "independent photographer could not sell photos taken of student-athletes directly from a non-institutional website for profit,", but also said that "an institution may structure its agreement/contract with the photographer to comply with NCAA regulations... This analysis is one of institutional control and would be at the discretion of each institution."
The NCAA claims that it has given schools a way to take and distribute photographs by doing everything in house. However, that current rule reads that the entire process must be handled by the university; all funds must be sent through the university, the university must develop, print and distribute the photos, as well as oversee and manage the web site. This is a fine solution if the institution has the resources to put towards this sort of enterprise, but in this era of declining budgets and shrinking staffs, few schools have the ability to go this route.
So, what this leaves us with is a huge grey area that could be interpreted 20 different ways by 20 different compliance officers. It leaves room for a great deal of error and potential violations.
The Solution
NCAA Legislation 2005-99 was proposed by the Sports Information Directors of the Big West Conference. The legislation would amend bylaw 12.5.1.8 as follows:
12.5.1.8 Promotion by Third Party of Highlight Film, Videotape, Photographs or Media Guide. Any party other than the institution or a student-athlete (e.g., a distribution company) may sell and distribute an institutional highlight film or videotape or an institutional or conference media guide or photograph that contains the names and pictures of enrolled student-athletes only if:
(a) The institution specifically designates any agency that is authorized to receive orders for the film, videotape, photograph or media guide;
[12.5.1.8-(b) unchanged.]
(c) The distribution company or a retail store is precluded from using the name or picture of an enrolled student-athlete in any poster or other advertisement to promote the sale or distribution of the film, photograph or media guide; and [Remainder of 12.5.1.8 unchanged.]
This change would put this sort of photo order in line with media guides and highlight films, allowing them to be purchased by the general public, and would erase the grey area permanently.
The Opposition and Rebuttal
The Academics/Eligibility and Compliance Cabinet came out against 2005-99, expressing in their statement of opposition that:
"It is appropriate for the institution to maintain control over the sale of photographs of student-athletes. Student-athletes should not be used by a third party in for-profit ventures because it may be perceived as exploitative."
While the cabinet should be commended for its concerns about keeping student-athletes from being exploited, their concerns are misguided.
- This would not give carte blanche for any photographer to take and sell pictures of any institution. The institutions could choose to contract with an official photographer, but would not be obliged to.
- The contract would set limitations and guidelines for the photographer to follow, thus putting the institution in ultimate control of the images.
- The institution would be setting the rules and the guidelines with any photographer they contracted with. Suggested guidelines would be ensuring that the photographer keep a record of who purchased the photos, setting the prices, maintaining ultimate say over what photos can or cannot be posted, and also placing limitations on which teams can be photographed.
- This would not change any responsibilities towards institutional control. Institutions would still have to have the due diligence that they do today regarding the use of the photos. A simple statement saying that the photos are for personal, private use only would take care of most legal issues or concerns about exploitation. Schools could also chose to password-protect their websites and only allow access to designated individuals. However, these necessarily need to handled on an institution-by-institution basis, rather than by decree by the NCAA.
- Institutions who chose to rely on third-party photographers would be able to designate a single-source outlet, thus permitting them better control of photo credentials at sporting events
.
Conclusion
Once again, it is important to restate: Institutions would continue to maintain control over the sale of photographs because they would be in control of who was given the opportunity to take the photos, and could easier control content and could better protect the interests of the student-athletes while at the same time offering them a service. There is no more a chance of exploitation than there is right now. Currently any photo could be taken from a publication or a web site and misused, and it would be up to the institution to correct the matter.
In fact, the prime beneficiaries of this are the student-athletes. Not only will they be better represented on their school's web sites and media guides, but many student-athletes will get the chance to have photos taken of themselves that they wouldn't ordinarily get.
The people who will lose out the most if this is not passed are the student-athletes in the smaller sports, the Olympic sports. The sixth or seventh runner on the cross country team, the softball pinch runner who appears in just a handful of games, the volleyball defensive specialist who sees limited duty. These are not the people who get their photos in the newspaper, nor are they likely to have their photos taken if the photographic duties are assigned to an already overextended media relations office whose goal is to take a photo of the superstar student-athlete and move on to the next task.
If you are fortunate enough to be in a position where you do not need to utilize an outside photographer, or have the resources to do the process in house, please take a moment to think about your brothers and sisters in the media relation profession and the student-athletes at the mid-majors, Division II and Division III. This legislation is designed to give the former group a chance to get the photos they need without breaking the bank, and to get the latter group some visual memories of their athletics career. In addition, it simply validates and simplifies something that dozens of schools across the nation are doing right now.
What Action to Take
Members of the Sports Information and Media Relations Offices who support this common-sense legislation must take their support to their athletics directors, senior woman administrators, faculty athletics representatives and compliance officers and ask them to submit a comment in support of the legislation and to seek support from their conference office. Administrators are also asked to publicly show their support of the legislation via statements of statements of support through the CoSIDA website and the NCAA News.