The Curious Case of UCF Kicker Donald De La Haye, YouTube Star
Former University of Central Florida (UCF) kicker Donald De La Haye had a dilemma.
As a college football player, he had the opportunity to play a pivotal role on a team that ultimately went undefeated during the 2017 season, win a conference championship, and play in a major bowl game.
His conflict, however, did not come from the typical difficulty of balancing school work versus athletics. Instead, his challenge was getting the athletic department’s Compliance Office to clear his “business interest” versus the backdrop of college athletics’ standard of amateurism.
NCAA’s Principle 2.9 – the Principle of Amateurism - states:
Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental, and social benefits to be derived. Student participation in intercollegiate athletics is an avocation, and student -athletes should be protected from exploitation by professional and commercial interests.
Furthermore, amateurism and determination of eligibility for student-athletes is further defined by the NCAA in Bylaws, Article 12. First and foremost, only an amateur student-athlete is eligible for intercollegiate athletics participation in a particular sport.
12.1.2 Amateur Status. An individual loses amateur status and thus shall not be eligible for intercollegiate competition in a particular sport if the individual:
(a) Uses his or her athletics skill (directly or indirectly) for pay in any form in that sport;
(b) Accepts a promise of pay even if such pay is to be received following completion of intercollegiate athletics participation;
(c) Signs a contract or commitment of any kind to play professional athletics, regardless of its legal enforceability or any consideration received, except as permitted in Bylaw 220.127.116.11;
(d) Receives, directly or indirectly, a salary, reimbursement of expenses or any other form of financial assistance from a professional sports organization based on athletics skill or participation, except as permitted by NCAA rules and regulations;
(e) Competes on any professional athletics team per Bylaw 12.02.11, even if no pay or remuneration for expenses was received, except as permitted in Bylaw 18.104.22.168.1;
(f) After initial full-time collegiate enrollment, enters into a professional draft (see Bylaw 12.2.4); or
(g) Enters into an agreement with an agent.
De La Haye was a marketing major at the school who originally hailed from Costa Rica. His foray into video-making started in 2015, shortly after he joined the football team as a kickoff specialist. He originally started the videos just for fun and a way to chronicle his experiences as a student-athlete at the school – and more specifically a kicker. His videos turned out to be very popular on campus and he was able to build a following of over 52,000 subscribers at the time of UCF’s determination of his eligibility. The ironic aspect about his newly acquired fame is that De Law Haye was essentially only played on kickoffs – so possibly 4-5 plays a game. He was hardly a celebrity or star player that would have otherwise been a household name. That makes his internet fame all the more impressive.
Based on the number of subscribers and views of his videos, De La Haye was able to monetize his videos through advertising tied to the videos generated by the hosting service (YouTube). Such advertising was not unique to De La Haye, it is the same advertising standards applied to all video producers in the same class and based on subscribers and viewers. Secondly, De La Haye was not required to attract advertisers or otherwise monetize the videos. Instead, YouTube overlays its own advertising over the content and provides producers with a percentage of the revenue it generates by playing those videos. De La Haye’s videos were in competition with every other “how to” video, cat video, and every other video on YouTube. As a marketing major, the success of the videos can arguably be advancing his own academic endeavors beyond the revenue it generated.
NCAA rules are fairly extensive regarding outside employment but somewhat vague in this area as they do not specifically govern the third-party revenue generation achieved by monetizing such videos. In essence De La Haye was not working for YouTube, if anything he was self-employed. The closest category on point would be Bylaw 12.4.4 which would classify the activities as “self employment.”
NCAA Bylaw 12.4.4 states:
A student-athlete may establish his or her own business, provided the student-athlete’s name, photograph, appearance or athletics reputation are not used to promote the business.
There in lies the dilemma. De La Haye’s videos are specifically about his experiences as a student-athlete at the university. He talks about his experiences trying to balance school work and practices, the life of a kicker on the football team, and other unique experiences based on his position. In essence, the videos were driven by his status as a student athlete in direct conflict with the NCAA principles and rules.
De La Haye’s struggle is not about his particular case as much as it is a challenge to the rules themselves. De La Haye does not claim that he was not informed of existing NCAA rules. Following its investigation, the UCF athletics department released the following statement about De La Haye’s YouTube dilemma as well:
“UCF Athletics is committed to rules compliance. Our compliance staff strives to make sure our student-athletes are informed about all pertinent NCAA bylaws. Student-athletes attend regular educational meetings regarding NCAA eligibility. One of our goals is to help our student-athletes learn about the bylaws that govern intercollegiate athletics, in an effort to help them maintain their eligibility.”
UCF was in a difficult position. They themselves just served probation tied to NCAA violations and had to take a position. Given the prior probation, they also have to rely on the strictest interpretation of the NCAA rules as they could not risk such a public potential violation. They also have to assert institutional control as well or face additional NCAA sanctions if they erred on the less conservative side of the interpretation.
Yet, the bigger question is whether making and monetizing YouTube videos is really employment in the first place? Unlike typical employment, there is not really much room for manipulation here. He is not being hired by a booster for a “no show” job. His earnings are not driven by how many field goals he makes or points he scores. While he does use his experiences as a student-athlete as the subject matter for the videos, would it have been any different for him had he now started to product cat videos instead and release them to his 52,000 followers? After all, student-athletes are young adults and YouTube is a staple tool for 20-somethings for everything from entertainment to how-to videos to sharing personal stories, such as De La Haye. In fact, his videos themselves would not be against NCAA rules if he simply checked a different box on YouTube’s “Monetization Preferences” screen on the site’s settings menu.
So, herein lies the dilemma for the NCAA. If simply making a video is not against the rules, then why would capitalizing on that same video be an issue? After all, NCAA schools invest heavily into making their star players celebrities selling multi-million dollar multimedia rights, developing their own TV shows and video clips, staging press conferences and other exposure opportunities. Other than the distraction of trying to capitalize on fame and status as a student-athlete, what is the harm to schools or the NCAA? One can argue that there is actually a cross benefit. With growing pressure on the NCAA to allow players to receive some benefit for the use of their privacy rights – including use of name, likeness or image – wouldn’t this form of income be the most benign since there is less room for undue influence? Revenue is based on viewership: more viewers equals more revenue potential. So, a student-athlete receives money based on and commensurate with the commercial value of the video itself. The revenue is easily traceable and auditable as YouTube and it’s parent Alphabet (Google) have plenty of tools used by millions of business who engage in such monetizations.
For now, De La Haye has chosen to forego his college football career and instead is focused on making the most of his YouTube fame and business opportunities. So, the debate will have to wait for the next student-athlete willing to test the waters.
This article also appears in the most recent issue of the Journal of NCAA Compliance (Hackney Publications)