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When CBS Corp. announced at the end of July that its fantasy sports Web site would use actual player names during the 2008 college football season, the NCAA took issue with the decision. Labeling the usage as exploitation, the NCAA said using player names violated the association's rules and threatened its commitment to amateurism. But due to an earlier federal court ruling that upheld the use of player names for a fantasy baseball league, the NCAA felt there was little it could do about the situation other than send a letter asking that the practice be stopped. CBS Corp. ignored the request, saying use of the information is protected by the right of free speech.

The NCAA's decision not to press the issue has drawn the ire of some members of the Knight Commission on Intercollegiate Athletics, which formally criticized the commercialization of athletes in such fantasy games and called for the NCAA to step up its efforts.

“I’ve always been suspect of the NCAA because I don’t think they represent what’s best for student-athletes but what’s best for the universities,” Nick Buoniconti, a commission member and University of Miami trustee said at the meeting. “To have such a weak response to this fantasy football league … I’m abhorred by what I’ve read. [The NCAA] should be leading the way.

"It is clear in my mind that an athlete owns his own likeness and image and everything that goes along with it," Buoniconti added. "They basically came in lukewarm by just sending a letter, not taking the position that we are going to litigate this if we have to. It doesn't make any sense."

But is the NCAA the group best suited to take legal action against media companies on this issue?

During the October 27 meeting, the commission—a reform group made up of college presidents, former athletes, and other officials—heard from a panel of lawyers and media experts, who said that colleges and athletes might have better legal footing than the NCAA in preventing media companies from profiting from the use of player names. That's because, according to Glenn Wong, Professor of Sports Management at the University of Massachusetts at Amherst, many athletes do not sign a right-to-publicity waiver when they enter their collegiate programs and can challenge the use of their names and likenesses in fantasy games.

David Moltz at InsideHigherEd.com reports that more than half of all states recognize a “right to publicity” either by virtue of explicit statutes or common law. Wong said that a class action suit filed in one of these states could potentially garner the most success. William Kirwan, Chancellor of the University System of Maryland and Co-Chair of the Knight Commission, said he would like to see the NCAA take the initiative in organizing universities and athletes to respond to this violation of its bylaws.

However, even if individual athletes won a decision over illegal or improper use of their names, they cannot receive compensation damages. Monies received from a lawsuit would count as payments based on a person's athletic skill and be in violation of NCAA rules. Moltz writes that if a case were successful, it's possible the only outcome could be that the fantasy game operator must cease and desist from using an athlete’s name and likeness. But such a decision could establish a precedent prohibiting future fantasy use rights.

"College athletes in fantasy games and video games may seem trivial to some, but these and other forms of new media pose new challenges to the long-held distinction between commercial activity featuring teams and that which focuses on individual athletes," said R. Gerald Turner, Knight Commission co-chairman and president of Southern Methodist University. "We continue to believe that universities need to treat athletes fairly and equitably, and for third parties to use them in commercial products and advertisements violates that principle."

Critics of the NCAA's views on athlete commercialization believe the association's stance on fantasy sports might be a bit hypocritical. Orlando Sentinel columnist Alan Schmadtke writes:

“Third parties”—gamers, fantasy league organizers—are making money by fostering competition based on college athletes. They have to pay the universities some licensing money for the use of logos and names, etc. But they don’t have to pay the players. But that’s where the argument starts to break down. Because NCAA-member schools already do what they accuse others of doing. They allow athletes to participate in ticket-selling promotional ads. They allow them to be on billboards around town for marketing. Watch during the week of the BCS Championship Game. Both teams will allow FOX to take their players and manufacture commercials of them for the game.

For this the athletes must—must, mind you—give of themselves and their time. They won’t get paid anything.

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In other business from the meeting, the Knight Commission began the first of a year-long series of meetings and research on the economics of college sports. The focus of the research will be on why expenses are rising faster than revenues at virtually all Division I athletics programs.

The NCAA News reports that at the meeting, the commission reviewed data showing only 19 NCAA Division I institutions recorded revenue above expenses in the most recent reporting cycle, and that the median net deficit for the majority of Division I institutions increased more than 20 percent since 2004.

“It’s clear that college sports has a spending problem that must be addressed,” said Kirwan. “In the aggregate, athletics spending continues to escalate while instructional spending has remained stagnant and has even decreased at many institutions. The current economic climate and the needs of our universities require a change in this imbalance.”

The Knight Commission meets again in January.

R.J. Anderson is an Assistant Editor at Athletic Management.