NCAA Athletes and Name, Image, and Likeness (NIL)
The right of publicity is an intellectual property right that protects an individual’s name, likeness, or other indicia of personal identity from being misappropriated by another for commercial benefit. For example, it protects individuals’ names, pseudonyms, voices, signatures, likenesses, and photographs. There is no federal right of publicity law, so applicable state law, which exists in a majority of states, provides protection.
The right of publicity received national attention when the NCAA loosened its amateurism requirements for student-athletes. On July 1, 2021, the NCAA adopted an interim policy allowing student-athletes to begin profiting from their Name, Image, and Likeness (NIL). The NCAA provided the following basic guidelines:
- Student-athletes must comply with state law as well as conference and institution policies if their institution is located in a state with NIL laws.
- If there is no applicable state law, student-athletes must comply with conference and institution NIL policies.
- Student-athletes can use professional services when engaging in NIL activities.
- Student-athletes should report NIL activities consistent with any laws and policies.
- NIL activities cannot be used as compensation for competing or as improper inducement to attend school.
The NCAA is pressing Congress to pass national NIL legislation. Many states are enacting NIL laws, if they have not done so already. These state laws tend to include the NCAA’s guidelines, but they may also include additional provisions like prohibiting sponsors related to alcohol or gambling or prohibiting institutions from preventing athletes from entering into NIL deals. Student-athletes (as individuals and even as teams) and companies are entering into lucrative NIL licensing deals that may test current NIL laws and policies. Legal challenges are anticipated in the future.
Considering the NCAA’s current policy, it is important to stay up to date with this rapidly changing legal landscape and, specifically, the applicable state NIL laws and institution policies.