Bayh-Dole For Jocks


Leonard Zwelling

It’s tough to remember that there are stories out there of significance beyond presidential impeachment and the burning of California, but there are. One of the most important for college athletics is the fact that the NCAA may finally be loosening its rules on allowing young collegiate athletes to make a little money from their prowess on the fields of play.

Of course, this is likely to apply mostly to football and basketball players, but it’s a start. For years, for the price of free tuition, colleges have used the talents of “student-athletes” to make a small fortune in gate revenues, TV contracts and shoe deals. The coaches and athletic directors, not to mention the universities themselves, were getting rich and the people actually doing the heavy lifting, the “student-athletes,” were getting nothing except an education if they wanted that, which the basketball players don’t seem to care about given the advent of the “one and done” athlete heading for the NBA before the start of his sophomore season. That can’t be fair or productive.

After California (where else?) passed a law allowing the athletes to make money, it is looking like the NCAA will finally relent and go along.

As this article in The New York Times on October 31, 2019 makes clear, there is already a system in place for creating a means for everyone to gain from the new NCAA rules.

As related in the article by Roger Pielke, Jr., a professor of environmental studies at the University of Colorado, there has been legislation in place since 1980 to deal with the question of who owns the income generated by the talents of university faculty and students. The Bayh-Dole Amendment basically said that the universities could profit from the commercialization of discoveries made using NIH grant money. Every dean in the country was looking for the next Gatorade and many institutions have made millions by licensing the inventions of the faculty. As is the case at MD Anderson, the revenue generated from a university patent is usually split between the faculty member, his or her department, and the university. Why not do the same with the income from the likeness of a college athlete?

If Nike wanted to use Zion Williamson in a commercial (not likely after the exploding shoe), they could have paid Duke, Duke athletics, and Mr. Williamson for the rights to his image. What’s the big deal?

In the case of the faculty with a new invention, the revenue from commercialization can be used to fund more research by the inventor, fund research in general at the university, and if the inventor so chooses, he or she can make a boat payment with his or her part of the cash. Of course conflict of interest rules had to be generated to make sure that investigators were not biasing their own results to enrich themselves and that has only been partially successful as faculty members still do research in their academic labs that advance their commercial products. They also serve as principal investigators on clinical trials using drugs that they have invented or in whose sponsors they have stock. These are bad ideas, but many institutions consider them manageable. They really aren’t, but that is (and has been) an argument for another blog.

Of course, another concern is whether this money will act as a bribe to alter the results of games when executives at shoe companies place large bets on the results. We can hope not. For now.

In summary, the NCAA should go ahead and let the market determine what the images and accomplishments of college athletes are worth and then establish the rules by which the university, the athletic department, and the athlete benefit. And no Title IX nonsense. The market will determine if a male basketball player’s image is worth more than a female’s. This isn’t about equity. It’s about money.

Bayh-Dole did stimulate the commercialization of academic discoveries. Some of these have had real benefits for the citizens of this country, especially patients. The same system can be used with the income generated by athletes. It’s right there. Use it.

Leonard Zwelling