Name, image and likeness — commonly shortened to NIL — are three elements that make up the legal concept known as “right of publicity.” Under normal circumstances, name, image or likeness has a value assigned by the open market. Individuals can license, or give permission to others, to use their NIL in exchange for a fee.

NCAA rules, subject to some very narrow exceptions, currently prohibit student-athletes from licensing their NIL due to the NCAA’s concept of “amateurism.” Amateurism can be a somewhat amorphous term, that can simplistically be defined as an expectation that student-athletes are a student first, an athlete second and they compete in their sport for the love of the game.

Recently, the issue of whether rules prohibiting student-athletes from taking advantage of opportunities to start their own business or license their NIL is appropriate has grabbed the attention of both state and federal lawmakers. Over 34 total states have proposed bills that would prevent the NCAA from enforcing rules its NIL-related rules. The bills vary, but focus on three main areas:

• Prohibiting enforcement of rules that currently disallow sponsorship or endorsement deals
• Allowing student-athletes to hire agents and other advisors
• Developing requirements for student-athletes to work with their institutions to avoid endorsement deals that conflict with their institution’s endorsement deals already in place

The federal legislature has also been very active in this space and has held a number of hearings with high-ranking campus administrators and NCAA staff alike in response to the NCAA’s request that the federal government legislate in this area. The patch-work of state legislation is set to become effective as early as summer 2021, so the NCAA, facing an expiring shot clock, has proposed concepts for what a relaxed rules systems might entail.

The NCAA working group assigned to this task is set to release more detailed information in August, with a vote by the membership tentatively planned for January 2021.

NIL Rights for Student-Athletes

If the NCAA relaxes its rules on NIL or federal/state legislation is passed, student-athletes could potentially earn money through two different channels. First, through third-party endorsements, where student-athletes will be able to accept money to promote products, businesses and brands, whether they are athletically related or not. An example of would be a football student-athlete getting paid to tweet about how much he loves Powerbars before lifting weights because it gives him a lot of energy. It would likely still be impermissible for a student-athlete to tie his or her University to the endorsement. For example, for a University of Texas football student-athlete to appear in a car dealership commercial wearing his jersey and flashing the Hook Em Horns ™ hand sign.

Based on the proposed state legislation, a school would not be permitted to arrange the deals, pay for their student-athletes to promote things or allow student-athletes to wear jersey or use school logo in an advertisement. As of today, the NCAA Working Group has taken the position that it may be permissible for representatives of the institution’s athletics interests (i.e., “boosters”) to pay for student-athletes’ NIL rights, but payment cannot be contingent on the student-athlete enrolling at a specific school or performing at a certain level athletically.

The second channel is through work product or business activities, where the student-athlete will be allowed to get paid for personal appearances, selling autographs, profiting from their own camps or clinics or promoting their own non-sports related business. An examples of this would include a women’s soccer student-athlete (who is a food science major) creating her own line of small batch ice cream and using her name, image and likeness to promote the brand. It would likely still be impermissible for that student-athlete to co-brand the ice cream with Clemson and call it Tiger Tracks.

Remaining Issues

Many important issues in this area remain open-ended. For example, to what extent, if at all, can a student-athlete pair with a brand that “conflicts” with his institution’s sponsors? What exactly does “conflict” mean? Will student-athletes be permitted to use an agent to broker deals? Can a student-athlete seek advise from other advisors, such as a tax professional or financial planner?

Despite all the remaining questions, we must face the reality that a new model will be here before we know it. Campuses must educate themselves in real time to understand what how this legislation will impact their campus and who within their campus and athletics staff are best suited to assist with this new system.

Our sports law team at CCHA Collegiate is prepared to help you navigate the new world of Name, Image and Likeness. If you have questions about how the new legislation might impact your campus, please do not hesitate to reach out to one of our attorneys.