October 29, 2019
University of Central Florida kicker Donald De La Haye was forced to choose between business success on his popular YouTube channel and a collegiate football career because of the NCAA’s arbitrary prohibitions on student-athletes using their own name, image, and likeness. But now, college student-athletes like Donald may never have their First Amendment rights violated in that way again.
Today, the National Collegiate Athletic Association (NCAA) Board of Governors voted unanimously to allow student-athletes to earn money from the use of their name, image, and likeness. Today’s vote comes on the heels of a bill passed by the California Legislature and signed into state law at the end of September, which will allow collegiate student-athletes to be paid for product endorsements and prevents the NCAA from banning athletes who enter into such agreements. It also follows a lawsuit brought by Donald De La Haye against the University of Central Florida, alleging that the University’s adherence to the NCAA’s rules violated Donald’s free speech rights.
The story of Donald De La Haye is a perfect example of the problems stemming from the NCAA’s limits on a student’s usage of their name, likeness, and image. In early 2018, with the help of the Goldwater Institute and the Texas Public Policy Foundation, University of Central Florida kicker Donald De La Haye sued UCF for violating his First Amendment rights after the University made him choose between posting popular videos on YouTube and his place on UCF’s football team. With hundreds of thousands of subscribers to his “Deestroying” YouTube channel, Donald was able to “monetize” some of his videos—meaning that he received modest ad revenue for every view. UCF—basing its decision on NCAA rules—told Donald that he had to choose between his YouTube channel and his membership on the team. When confronted with this unconstitutional demand, the young entrepreneur chose to focus on his YouTube channel and continue making videos.
Like all Americans, and all American college students, De La Haye has broad free expression rights both on and off campus, and a public university violates a student’s First Amendment rights when it punishes a student for speech solely because the University does not approve of its content. When UCF removed de La Haye from the football team and rescinded his scholarship based on his online speech, the university violated his constitutional rights.
De La Haye settled his lawsuit against UCF in late 2018, allowing him to seek readmission as a student—but not as an athlete.
The NCAA’s decision is a very welcome announcement for student-athletes across the country—and Donald De La Haye’s case helped to encourage this change. “Colleges and universities should encourage student-athletes to harness their talents and skills to build their careers and help their communities,” said Goldwater Institute Director of National Litigation Jon Riches, who represented De La Haye in his lawsuit. “For far too long, public universities blindly adhered to a NCAA regime that was both unjust to student athletes and unconstitutional under the First Amendment. We are very happy to see the NCAA finally reverse course and allow students to make the most of their skills and talents so that they have as many opportunities as possible available to them.”