History and Contours of the Right of Publicity
Background and Purpose of the Right of Publicity
The "right of publicity" was first recognized in 1953 by Judge Jerome Frank of the U.S. Court of Appeals for the Second Circuit.1 In Haelan Laboratories v. Topps Chewing Gum, Inc., a chewing gum company contracted with a professional baseball player for the exclusive right to use the player's picture in connection with marketing the company's gum.2 The company then sued a competitor chewing gum company that subsequently entered into a contract with the player.3 The competitor argued that the right was a personal privacy right which could not be held by a company.4 Judge Frank clarified:
This right might be called a "right of publicity." For it is common knowledge that many prominent persons (especially actors and ball-players), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways.5
Ever since Judge Frank penned the words "right of publicity," the right has continuously expanded, and many states now recognize the right by state statute and/or common law. Although the publicity right originated in privacy and unfair competition jurisprudence, the right of publicity is now generally considered its own distinct right. States maintain the spirit of what Judge Frank articulated: that the right of publicity is recognized as "the inherent right of every human being to control the commercial use of his or her identity."6Other commentators, including Professor Melville Nimmer, further molded the contours of publicity rights as distinct from privacy and trademark rights. For example, Professor Nimmer opined:
[A]lthough the well known personality does not wish to hide his light under a bushel of privacy, neither does he wish to have his name, photograph, and likeness reproduced and publicized without his consent or without remuneration to him.7
General Overview of the Right of Publicity
As of the publication date of this article, 37 states recognize the right of publicity through statutory or common law.8 In three additional states, only federal courts have addressed the right of publicity.9 In the remaining ten states, there is no statute recognizing the right of publicity, and research did not reveal any reported state or federal decisions addressing the issue.
The right of publicity is generally characterized as a property right akin to intellectual property.10 Most jurisdictions follow one of two tests to determine if a defendant has misappropriated a plaintiff's right of publicity.
The first test originates from common law and provides that a plaintiff must prove that: (1) the defendant used the plaintiff's persona, (2) the defendant's use was for its advantage, commercial or otherwise, (3) the plaintiff did not consent to the use, and (4) the appropriation is likely to injure the plaintiff.11 Other jurisdictions apply a second, more contemporary test, following the Third Restatement of Unfair Competition, and require that: (1) the defendant used, without permission, some aspect of the plaintiff's identity or persona in such a way that the plaintiff is identifiable from the use and (2) the defendant's use is likely to cause damage to the commercial value of that identity or persona.12
Exceptions to the right of publicity generally fall under the purview of the First Amendment's freedom of speech and free press clause. Specifically, commentary or newsworthy matters and transformative uses are recognized exceptions and can be asserted as defenses for using a person's NIL without authorization. For instance, in 2007, the Eighth Circuit held that the public interest value of using a professional baseball player's NIL in a fantasy sports league outweighed the player's right of publicity because baseball is the "national pastime" and there is a "substantial public interest" in dissemination of information around baseball players' performances.13 The Court reasoned that the information was already disseminated in traditional media and that it should also be available in pay-to-play fantasy sports leagues.14 In addition, the Court noted that baseball players are "handsomely" rewarded for their on-field play and found that this fact undermined the baseball player's right of publicity claims.15 In contrast, in 2013, the Ninth Circuit held that former Arizona State quarterback, Sam Keller, could pursue right of publicity claims against a video game developer who had used an avatar of Mr. Keller, finding that the use was not protected by the First Amendment because the commercial appeal of the video game came from playing with the specific athlete.16 As a practical matter, this distinction may be less relevant where the brand's depiction of an athlete's NIL is used to establish a commercial advantage.
The National Collegiate Athletic Association
In the early 1900s, the National Collegiate Athletic Association ("NCAA") established itself as an entity representing the interests of college athletics and athletes. The Supreme Court stated in 1984 that the NCAA is the guardian of the important American tradition of amateur athletics.17 The meaning of "amateur" within the context of college athletics has, however, evolved over time. Initially, the NCAA prohibited member schools from financially compensating student-athletes for their attendance. The goal of this policy was to increase parity among schools with respect to recruitment of college athletes. In the 1950s, the NCAA modified its policies to allow member schools to offer scholarships to student-athletes, covering tuition and fees. In 2014, the NCAA permitted the expansion of these scholarships to cover the full cost of attendance of school.
NCAA rules originally provided that student-athletes wishing to maintain their amateur status and eligibility to compete in NCAA leagues could not accept payments for use of their NIL. Additionally, when student-athletes agreed to play at NCAA member schools, they granted the NCAA exclusive rights to use their NIL for the school's promotional activities. For decades, the NCAA has faced criticism for its interpretation of "amateurism" and its exclusive control over what has become a billion-dollar market.18
Advocates for student-athletes opposed the NCAA's stance on student-athletes' NIL, asserting that student-athletes and their valuable NIL drive the massive market that the NCAA capitalizes on. The NCAA maintained that the purpose of its prohibitions on the exploitation of student-athletes' NIL is to preserve the fundamental principles of amateurism and to maintain a competitive balance among its member schools in recruiting. Over the past several decades, the NCAA has faced various legal challenges to its NIL rules.
NCAA Litigation
A 1984 statement by Justice Stevens that "athletes must not be paid" has fueled many of the NCAA's arguments and positions throughout its legal battles.19In a case widely referred to as Board of Regents, the Board of Regents of the University of Oklahoma and the University of Georgia Athletic Association sued the NCAA to end the NCAA's control over television rights to college football games.20 The Supreme Court held that the NCAA's television plan violated the Sherman and Clayton Antitrust Acts.21The NCAA's television plan allowed broadcasters to select dates and a set of games to televise. Schools were not allowed to contest the broadcasters' decisions—effectively eliminating competition related to broadcasting rights.22 However, straying from the arguments briefed by the parties and the question presented to the Supreme Court, Justice Stevens also included the following passage, which has had long-lasting implications, including for today's student-athletes:
Moreover, the NCAA seeks to market a particular brand of football—college football. The identification of this "product" with an academic tradition differentiates college football from and makes it more popular than professional sports to which it might otherwise be comparable, such as, for example, minor league baseball. In order to preserve the character and quality of the "product," athletes must not be paid, must be required to attend class, and the like. And the integrity of the "product" cannot be preserved except by mutual agreement; if an institution adopted such restrictions unilaterally, its effectiveness as a competitor on the playing field might soon be destroyed. Thus, the NCAA plays a vital role in enabling college football to preserve its character, and as a result enables a product to be marketed which might otherwise be unavailable. In performing this role, its actions widen consumer choice—not only the choices available to sports fans but also those available to athletes—and hence can be viewed as pro-competitive.23
Subsequent decisions have interpreted Justice Stevens's words and shaped today's legislation and conversations regarding student-athletes' NIL.
Forty years later, District Court Judge Wilken of the Northern District of California rejected the NCAA's reliance on Justice Stevens's dicta in Board of Regents.24 In the case before Judge Wilken, Ed O'Bannon, a former basketball player for UCLA, and other student-athletes filed a class action lawsuit against the NCAA alleging violations of the Sherman Antitrust Act and misappropriation of their right of publicity.25 O'Bannon became the lead plaintiff after Electronic Arts ("EA") published NCAA Basketball 09, featuring an unnamed UCLA player resembling O'Bannon.26The class action lawsuit challenged the NCAA's rules restricting compensation for the use of student-athlete NIL as an unreasonable restraint of trade because the rules prevented players from receiving any compensation for the use of their NIL in video games and broadcasts.27 EA and the Collegiate Licensing Company, the entity which licenses trademarks of the NCAA, were initially named as co-defendants with the NCAA but were dismissed after a $40 million settlement.28
The district court found the NCAA's evidence of "its longstanding commitment to amateurism" unpersuasive and noted that the "association's current rules demonstrate that, even today, the NCAA does not consistently adhere to a single definition of amateurism."29 Further, the district court clarified that Board of Regents addressed limitations on television broadcasting—not payments to student-athletes—and "does not stand for the sweeping proposition that student-athletes must be barred, both during their college years and forever thereafter, from receiving any monetary compensation for the commercial use of their names, images, and likenesses."30On reviewing the record, the district court found that the NCAA had revised its rules governing student-athlete compensation numerous times over the years and held that rather than evincing the association's adherence to "a set of core principles," the record established that the NCAA's definition of amateurism has been malleable since its founding.31The district court concluded that the NCAA's restrictions play a limited role in driving consumer demand for college football and thus, do not justify the rigid prohibition on compensating student-athletes with "any share of licensing revenue generated from the use of their names, images, and likenesses."32
The district court's remedy consisted of allowing the NCAA to permit schools (1) to award stipends to student-athletes up to the full cost of attendance; and (2) to hold in trust up to $5,000 per year earned from "the licensing or use of . . . [student-athlete's] names, images, and likenesses" payable to the student-athletes when they leave school or their eligibility expires.33 The NCAA appealed the ruling arguing that the district court did not properly consider Board of Regents.34
The Ninth Circuit concluded "that the district court's decision was largely correct,"35 but held that its remedy, allowing student-athletes to receive cash compensation of up to $5,000 per year for licensing or use of their NIL, was erroneous.36 The Ninth Circuit reasoned that "the district court ignored that not paying student-athletes is precisely what makes them amateurs."37 The Supreme Court denied certiorari petitions filed by both O'Bannon and the NCAA.
The NCAA once again found itself in front of Judge Wilken in 2014 in a case captioned In re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation ("Alston"), in which former and then-current student-athletes contested NCAA rules limiting the compensation they may receive in exchange for their athletic services.38 The student-athletes contended that the limitations on compensation violated federal antitrust law because they would receive greater compensation in the absence of these artificial limits.39 In finding that the NCAA did restrain trade in the relevant market and that the challenged limits on student-athlete compensation produced significant anticompetitive effects, the district court found that "an alternative compensation scheme that would allow limits on the grant-in-aid scholarships at not less than the cost of attendance" would be just as effective as the challenged rules in achieving the only procompetitive effect the NCAA had shown: preventing unlimited cash payments unrelated to education.40In addition, "limits on compensation and benefits unrelated to education" were also included in the opinion.41
The parties appealed this decision to the Ninth Circuit ("Alston II").42 The Ninth Circuit again largely affirmed the district court's decision that the limitations placed on educational benefits were unreasonable and violated federal antitrust law.43 The Ninth Circuit agreed with the district court that the NCAA's rules had significant anticompetitive effects in the market:
[B]ecause elite student-athletes lack any viable alternatives to [Division 1 college athletics], they are forced to accept, to the extent they want to attend college and play sports at an elite level after high school, whatever compensation is offered to them by [Division 1] schools, regardless of whether any such compensation is an accurate reflection of the competitive value of their athletic services.44
The NCAA advanced just one procompetitive justification for its challenged rules: it claimed that they preserve "amateurism," which widens consumer choice by maintaining a distinction between college and professional sports.45 As noted above, the district court found that only some of the NCAA's rules served that purpose, including rules limiting payments unrelated to education above the cost of attendance, a cost-of-attendance cap on athletic scholarships, and other restrictions on cash, academic, or graduation awards and incentives.46 The NCAA maintained its argument that it "expands consumer choice by enforcing an amateurism principle under which student-athletes 'must not be paid' a penny over the [cost of attendance].'"47 The Ninth Circuit criticized the NCAA's "'Not One Penny' standard [as] lack[ing] support in both precedent and the record."48 Citing to Board of Regents and O'Bannon, the Ninth Circuit determined that neither decision purported to "immortalize" the definition of amateurism although the decisions did define amateurism as excluding pay-to-play for student-athletes.49
Unlike O'Bannon, Alston II made its way to the Supreme Court in 2021. Justice Gorsuch, writing for a unanimous court, ruled that the NCAA rules were not reasonably necessary to distinguish between college and professional sports.50 Once again, the NCAA pointed to Board of Regents as precedent that "expressly approved its limits on student-athlete compensation."51 The Court noted that while Board of Regents"may suggest that courts should take care when assessing the NCAA's restraints on student-athlete compensation[,] . . . these remarks do not suggest that courts must reflexively reject all challenges to the NCAA's compensation restrictions."52 Further, "[s]tudent-athlete compensation rules were not even at issue in Board of Regents."53
Justice Kavanaugh, in his concurrence, noted that "[t]he NCAA has long restricted the compensation and benefits that student-athletes may receive."54 Additionally, he noted that the Court's opinion "makes clear that the decades-old 'stray comments' about college sports and amateurism made in [Board of Regents] were dicta and have no bearing on whether the NCAA's current compensation rules are lawful."55 He also remarked that the case at hand involved only a narrow subset of the NCAA's compensation rules—"namely, the rules restricting the education-related benefits that student-athletes may receive" and that other rules, like ones restricting student-athletes from receiving money from endorsement deals and the like, remain on the books.56 However, Justice Kavanaugh commented that those rules and others "also raise[] serious questions under the antitrust laws."57 Justice Kavanaugh specifically rejected the single procompetitive argument proffered by the NCAA, concluding that the NCAA's business model "would be flatly illegal in almost any other industry in America."58 He emphasized how the NCAA suppressed the pay of student-athletes, who collectively generate "billions" of dollars in revenues for colleges every year, and how the "sums of money flow to seemingly everyone except the student-athletes."59 In his conclusion, Justice Kavanaugh stated that "[n]owhere else in America can businesses get away with agreeing not to pay their workers a fair market rate" and that "the NCAA is not above the law."60
Following the Supreme Court's decision, then-NCAA president Mark Emmert commented that "[e]ven though the decision does not directly address name, image, and likeness, the NCAA remains committed to supporting NIL benefits for student-athletes."61 Following this decision, the NCAA worked to come to a consensus on proposed legislation regarding NIL payments to student-athletes. Shortly thereafter, in July 2021, the NCAA released an interim policy governing NIL payment to student-athletes. In December 2023, current NCAA president, Charlie Baker, proposed "forward looking" changes to the association's NIL policy.
Overview of the NCAA's Interim NIL Policy and Current State of the Law
The NCAA's interim NIL policy puts the onus on states and schools to establish, follow, and enforce NIL rules. The policy allows brands to pay student-athletes in exchange for the use of their NIL in advertising for products and/or services. Brands often see these relationships as an effective way to connect their products and services with college athletics and its fans. There are, however, constraints. The policy prohibits NIL agreements in the form of pay-to-play agreements. Thus, the agreement must be for actual work performed for the brand and cannot be contingent on enrollment or based on athletic achievement. One issue the policy considers is the complex and varied state laws that govern NIL. Accordingly, the policy allows student-athletes to engage in NIL activities consistent with the law of the state where their college is located. The policy permits individuals to engage in NIL activities even if their school is in a state without NIL laws. All student-athletes must report their individual NIL activities to their schools.
In September 2019, California became the first state to pass student-athlete NIL legislation, which went into effect September 1 2021. California's NIL law exempts NIL payments from conduct that the NCAA can use to revoke a student-athlete's eligibility. In June 2020, a similar Florida law was passed and took effect in July 2021, increasing the pressure on the NCAA to enact rule changes of its own and serving as a useful model for other states. As of this writing, thirty-two states have now passed student-athlete NIL laws.62 Common provisions of state NIL laws include preventing schools from refusing player eligibility to participate in athletics from athletes who exercise NIL rights, preventing schools from withholding player eligibility for the above, preventing colleges from providing NIL compensation as a recruiting inducement, allowing student-athletes to hire agents and/or attorneys, and preventing student-athletes from entering into NIL contracts that conflict with their teams' contracts.
Many NCAA member schools have also enacted school-specific policies governing student-athletes and related NIL endorsements and/or deals. In addition, student-athletes are bound by contractual agreements with their respective colleges. These additional agreements generally further restrict student-athletes' ability to enter sponsorship agreements with brands. For example, student-athletes may not be able to enter brand deals that conflict with their agreements with their school or their teams' other contractual agreements.
No federal statute governs NCAA NIL issues. While several federal bills have been proposed, none have passed.63 Should federal legislation be enacted, it may preempt NCAA policies, state law, and school rules. As noted by the NCAA's former president, Mr. Emmert, "[w]ith the variety of state laws adopted across the country, [the NCAA] will continue to work with Congress to develop a solution that will provide clarity on a national level."64 Accordingly, it is important for brands to know what state law and school polices will govern each athlete under consideration for a brand partnership.
Recently, one district court considered the NCAA's NIL policy. In February 2024, District Court Judge Corker of the Eastern District of Tennessee issued a preliminary injunction prohibiting the NCAA from enforcing its NIL policy or any rules that prohibit "student-athletes from negotiating compensation for NIL with any third-party entity," including boosters and booster-led collectives.65 The attorneys general for the Commonwealth of Virginia and the State of Tennessee filed a complaint alleging that the NCAA's "NIL-recruiting ban," prohibiting third parties such as boosters "from engaging in recruiting activities, including recruiting conversations" and from guaranteeing or promising student-athletes an NIL agreement that is contingent on enrollment at an institution, constitutes an "illegal agreement to restrain and suppress competition" within the labor market of Division I athletics.66
Judge Corker found that plaintiffs were likely to succeed on the merits of their claims that the NIL-recruiting ban unreasonably restrains trade.67 Analyzing the reasonableness of the NCAA's ban under the Rule of Reason, Judge Corker found that plaintiff met its burden showing that the ban had a substantial anticompetitive effect on Division I athletics because the ban suppressed price competition by limiting negotiating leverage and, as a result, knowledge of the student-athlete's NIL value. Judge Corker rejected all of the NCAA's "procompetitive" rationales for its ban.68 First, the court did not find persuasive that the NCAA's rules preserve collegiate athletics as a unique offering by promoting a balance of academics and athletics and maintaining a distinction between collegiate and professional athletics.69 The Court also found that even if this was a procompetitive rationale, these benefits could be accomplished through less restrictive rules in the NCAA bylaws such as minimum grade point averages.70 Second, the court found the NCAA's other justification—its rules foster competitive balancing among schools and ensure student-athletes participate in meaningful athletic competition at the highest level—while "not devoid of logic," "not relevant" to its inquiry.71 This act of spreading competition evenly across schools by restraining trade is "precisely" the type of anticompetitive conduct the Sherman Act seeks to prevent.72 Third, the court found the NCAA's last justification, that the rules safeguard prospective student-athletes, a "social justification" for a restraint of trade, which "does not make it any less unlawful."73
Judge Corker also found that the NIL-recruiting ban irreparably harms student-athletes by "stripping" them of their negotiating leverage and "blinding" them to their true NIL value: "It would be difficult, if not impossible, to recreate [the] negotiating environment after the signing period closes or after a student-athlete begins their college career at a particular school."74 The balance of equities also favored a preliminary injunction because neither the NCAA nor any other individual or entity will face substantial harm, Judge Corker found.75 And the injunctive relief served the public interest because it prevented anticompetitive behavior and instead encouraged free and fair price competition in the NIL market.76
NCAA "Forward Looking" Proposed Changes
In December 2023, the NCAA's current president, Mr. Baker, sent a letter to Division I schools proposing several changes to the NCAA NIL policy.77 Mr. Baker noted the disparity in spending on athletic programming among Division I schools, with nearly 60 schools spending over $100 million annually while nearly 150 schools spend less than $25 million. His letter also noted that most Division II and Division III schools spend less than $20 million on their athletic programs annually. Taken together, Mr. Baker found a growing financial investment divergence, and asserted that this divergence is complicated by NIL opportunities for student-athletes.
To address this situation, Mr. Baker proposed a "forward looking" solution, i.e., three major changes. The first change would allow all Division I schools to offer any level of enhanced educational benefits to their student-athletes, and the second change would allow all Division I schools to enter NIL licensing agreements with their student-athletes. As to the first change, schools are currently limited to the amounts specified by the Supreme Court in Alston; as to the second change, the NCAA's current NIL policy prevents schools from taking an active role in most activity geared toward student-athletes' NIL. Citing the statutory requirements for schools to comply with Title IX, Mr. Baker predicted that his proposal will "help level what is fast becoming a very unlevel playing field between men and women student-athletes[.]"
Mr. Baker's third change called on institutions "with the highest resources" to invest at least $30,000 annually in trust for student-athletes and to work with the NCAA to develop rules for these high-spending schools that will differ from the rest of their Division I peers.
These proposals may be a reaction to pending legal battles between the NCAA and student-athletes regarding NIL issues.78 For example, in 2021, the Northern District of California certified a putative class action in Grant House v. NCAA.79 Grant House, a swimmer at Arizona State University, along with Sedona Price, a basketball player at the University of Oregon, are challenging NCAA rules governing use of their NIL. The complaint alleges that, but for the NCAA's restrictive NIL policy, schools would cooperate with and help student-athletes use their NIL, allowing both parties to share in potential gains.80 In the complaint, the student-athletes demand permanent injunctive relief that would restrain the NCAA from continued enforcement of its restrictive NIL policy. As these litigations proceed and as the NCAA responds, it is important for brands to consider what precautions they should take when engaging student-athletes for deals that involve both parties' intellectual property.
Precautions when Using NCAA Trademarks
Apart from considerations relating to student-athletes' NIL, it is important to keep in mind that the NCAA owns numerous trademark registrations, including for the marks March Madness®, Final Four®, Elite Eight®, History Happens Here®, National Collegiate Athletic Association®, and NCAA®. Roughly 85% of the NCAA's yearly budget comes from advertising and marketing of March Madness.81 The NCAA maintains a strong reputation for protecting its trademarks, including by securing federal trademark registrations. Moreover, it is the NCAA's position that "[t]he NCAA must grant approval before the use of any NCAA trademark or logo."82 Brand sponsors should consider whether and how they will incorporate the NCAA's trademarks in any marketing campaigns featuring athletes. If such use is under consideration, a brand may need the NCAA's consent in addition to an NIL agreement with the athlete.
March Madness & Case Examples
College sports is a billion-dollar industry. Not surprisingly, brands and sponsors want to partner with college athletes to promote their products and services and are willing to pay considerable sums for those opportunities.
For instance, Paige Bueckers, a University of Connecticut ("UConn") women's basketball player, was the first college athlete to sign a deal with Gatorade.83 Ms. Bueckers promoted the brand in television commercials, social media, and product collaborations and events.84 She also signed a deal to be a spokesperson for Stock X, a global e-commerce platform for sneakers, toys, and electronics.85 Her UConn teammates, Olivia Nelson-Ododa and Azzi Fudd, similarly landed deals with brands including Fabletics, Chipotle, and BioSteel.86 UConn teammates Christyn Williams and Caroline Ducharme provide an example of how many student-athletes engage agencies, including Excel Sports Management, to manage their NIL deals.87 Shedeur Sanders, quarterback for the University of Colorado, became the first college football athlete to sign an NIL deal with Gatorade.88He also signed other NIL deals, including with Beats by Dre and Tom Brady's new apparel line.89 Other examples include a fitness center chain in South Florida offering each University of Miami football player $500 per month to endorse the gym (amounting to a total of $540,000 for the team); Alabama's former star quarterback, Bryce Young, who signed an NIL deal of more than $800,000 with Cash App; Louisiana State University's gymnast Olivia Dunne, who signed a deal for more than $1,000,000 with activewear brand Vuori; and Ohio State football player Quinn Ewer, who signed a deal of $1,400,000 with GT Sports Marketing to provide autographs.90
A review of the NIL deals inked shortly before March 2022 shows that, while basketball was not the only thing "mad" in March, brand deals with star players were particularly in demand. Chucky Hepburn, who hit a game winning shot for the University of Wisconsin's men's basketball team, landed a deal with The Players Trunk to launch a special clothing line.91Drew Timme, forward for Gonzaga Bulldogs' men's basketball team, signed a deal with the Dollar Shave Club to be an influencer for the company.92Timme's teammate, Chet Holmgren, signed deals with Yahoo Sports, Topps trading cards, and Bose.93 Bose also signed deals with Aliyah Boston, forward for the University of South Carolina's women's basketball team, and Wendell Moore Jr., a player on Duke's men's basketball team.94 Cameron Brink, a player for Stanford University's women's basketball team, signed a deal with Great Clips for a March Madness promotion.95 These are just a few examples of NIL deals between college basketball players and brands. Opendorse, an athlete-focused NIL consulting agency, reported that "men's and women's basketball ranked in the top three sports for NIL compensation."96 Fourteen sponsors and twenty-two advertisers appeared across ESPN networks for the 2022 NCAA Division I Women's Basketball Tournament—including Adidas, Apple, AT&T, Credit Karma, General Motors, Golden Corral, Indeed, Invesco, Jersey Mike's, Merck, and others.97
Traditional brands are not the only players in the NIL game. Many NIL deals are with school boosters, otherwise known as collectives, which are businesses that provide NIL opportunities for student-athletes. The University of North Carolina ("UNC") became the first college to provide a licensing program for its student-athletes.98 UNC partnered with its marking and licensing agency, The Brandr Group, which licenses both school trademarks and student-athletes' NIL to help student-athletes profit from their NIL on Tar Heels jerseys and potentially in videogames.99 Following UNC's lead, Ohio State launched a similar program called the "NIL Edge Team."100
Precautions Brands Should Take with NIL Deals
The NCAA's interim NIL policy coupled with college policies and developing state laws provides a unique opportunity for brands to interact with a new set of endorsers. Brands should, however, be careful when negotiating deals with student-athletes.
Brands should be familiar with state laws, college policies and agreements, and college team contracts that may constrain student-athletes availability for NIL sponsorships as well as current and future decisions interpreting the NCAA's NIL policy. Considering these laws, policies, and agreements, brands should clearly define NIL rights and the scope and exclusivity of those rights when contracting with student-athletes. For example, the length of exclusivity, the markets or geographical scope of the exclusivity, the products and services covered, and the types of advertising permitted should be defined in the NIL agreement. Brands should also specify how NIL rights interact with and are (or are not) associated with intellectual property rights retained by the student-athlete, the school, and the brand. Even with the less restrictive oversight of NIL transactions proposed by the NCAA in December 2023, brands should inquire about any college policies and/or prior contracts that a student-athlete has entered that may affect their ability to license their NIL.
Finally, as with any endorsement, brands should evaluate the full student-athlete, including their academic standing, extracurricular activities, personal life, brand preferences, social media presence, and stats on the field or court to ensure a good cultural fit between the brand and the athlete.
Footnotes
1. Haelan Lab'ys v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953).
2. Id.
3. Id.
4. Id.
5. Id.
6. RIGHTS OF PUBLICITY AND PRIVACY § 1:3 (2d ed).
7. Melville B. Nimmer, The Right of Publicity, 19 L. & Contemp. Probs. 203, 203 (1954).
8. The following states recognize the right of publicity: Alabama (Ala. Code § 6-5-770), Arizona (Ariz. Rev. Stat. Ann. § 12-761 (applies only to soldiers)), Arkansas (Ark. Code Ann. § 4-75-1101), California (Cal. Civ. Code § 3344), Connecticut (In re Jackson, 972 F.3d 25 (2d Cir. Aug. 19, 2020)), Florida (Fla. Stat. § 540.08), Georgia (Martin Luther King, Jr., Ctr. Soc. Change, Inc. v. Am. Heritage Prods., Inc., 296 S.E.2d 697, 703 (Ga. 1982)), Hawaii (Haw. Rev. Stat. Ann. §§ 482P-2 to 482P-6), Illinois (765 Ill. Comp. Stat. 1075/1), Indiana (Ind. Code § 32-36-1), Kentucky (Ky. Rev. Stat. Ann. § 391.170), Louisiana (La. Stat. § 14:102.21 (applies only to soldiers)), Massachusetts (Mass. Gen. Laws ch. 214, § 3A, 1B), Michigan (Pallas v. Crowley, Milner & Co., 33 N.W.2d 911 (Mich. 1948)), Minnesota (Ventura v. Titan Sports, Inc., 65 F.3d 725 (8th Cir. 1995)), Missouri (Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003)), Nebraska (Neb. Rev. Stat. § 20-202), Nevada (Nev. Rev. Stat. §§ 597-770 to 597-810), New Hampshire (Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288 (D.N.H. 2008)), New Jersey (Estate of Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981)), New Mexico (Moore v. Sun Publ'g Corp., 881 P.2d 735 (N.M. Ct. App. 1994)), New York (N.Y. Civ. Rights Law §§ 50–51 (applies only to living individuals)), Ohio (Ohio Rev. Code Ann. § 2741.01), Oklahoma (Okla. Stat. tit. 21, § 839.1), Oregon (Anderson v. Fisher Broad. Co., 712 P.2d 803 (Or. 1986)), Pennsylvania (42 Pa. Cons. Stat. § 8316), Rhode Island (9 R.I. Gen. Laws § 9-1-28.1), South Carolina (Gignilliat v. Gignilliat, Savitz & Bettis, L.L.P., 684 S.E.2d 756 (S.C. 2009)), South Dakota (S.D. Codified Laws § 21-64-2), Tennessee (Tenn. Code Ann. §§ 47-25-1101 to 47-25-1108), Texas (Tex. Prop. Code Ann. § 26.001), Utah (Utah Code Ann. §§ 45-3-1 to 45-3-6), Vermont (Staruski v. Continental Telephone Co. of Vt., 581 A.2d 266 (Vt. 1990)), Virginia (Va. Code Ann. § 8.01-40), Washington (Wash. Rev. Code § 63.60.010), West Virginia (Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70 (W. Va. 1983)), and Wisconsin (Hirsch v. S.C. Johnson & Son, Inc., 280 N.W.2d 129 (Wis. 1979)).
9. This includes the following states: Colorado (Donchez v. Coors Brewing Co., 392 F.3d 1211 (10th Cir. 2004), Delaware (Ettore v. Philco Television Broad. Corp., 229 F.2d 481 (3d Cir. 1956)), and Iowa (Sharp-Richardson v. Boyds Collection, Ltd., 1999 WL 33656875 (N.D. Iowa 1999)).
10. See, e.g., Acme Circus Operating Co v. Kuperstock, 711 F.2d 1538, 1541 (11th Cir. 1983) (the right of publicity is "an intangible personal property right"); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 573 (1977) (stating the right of publicity has goals "analogous to the goals of patent and copyright law").
11. Eastwood v. Superior Court, 198 Cal. Rptr. 342 (Ct. App. 1983), superseded by statute,KNB Enters. v. Matthews, 78 Ca. App. 4th 362 (CT. App. 2000).
12. Restatement (Third) of Unfair Competition § 46.
13. C.B.C. Distrib. & Mktg, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818, 823 (8th Cir. 2007). A fantasy league is an online group where participants assemble a team of players and compete, usually for money, against other participants who have assembled teams of players.
14. Id.
15. Id.
16. In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268, 1278 (9th Cir. 2013).
17. Nat'l Collegiate Athletic Ass'n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 101 (1984).
18. NCAA earns $1.15 billion in 2021 as revenue returns to normal, ESPN (Feb. 2, 2022), https://www.espn.com/college- sports/story /_/id/33201991/ncaa-earns-115-billion-2021-revenue-returns-normal.
19. Bd. of Regents, 468 U.S. at 102.
20. Id. at 85.
21. Id. at 102. Justice White—a former college football player at Colorado—dissented from the majority opinion and stated that the NCAA's restrictions were reasonable based on the unique nature of college athletics. Id. at 121 (White, J., dissenting).
22. See id. at 91–94.
23. Id. at 102 (emphasis added).
24.O'Bannon v. Nat'l Collegiate Athletic Ass'n, 7 F. Supp. 3d 955 (N.D. Cal. 2014) ("O'Bannon"), aff'd in part, vacated in part, O'Bannon v. Nat'l Collegiate Athletic Ass'n, 802 F.3d 1049 (9th Cir. 2015) ("O'Bannon II").
25. O'Bannon, 7 F. Supp. 3d at 955.
26.NCAA antitrust trial set for June 9, ESPN (May 23, 2014), https://www.espn.com/college-sports/story /_/id/10975452/judge- orders-antitrust-suit-vs-ncaa-go-trial-next-month.
27. O'Bannon, 7 F. Supp. 3d at 955.
28. Lester Munson, NCAA athletes get their day in court, ESPN (June 6, 2014), https://www.espn.com/espn/otl/story /_/id/11045682/ed-obannon-lawsuit-ncaa-pay ing-play ers-set-begin.
29. O'Bannon, 7 F. Supp. 3d at 1000.
30. O'Bannon, 7 F. Supp. 3d at 999.
31.Id. at 1000.
32. Id. at 1001.
33. Id. at 1005.
34. O'Bannon II, 802 F.3d at 1039.
35. Id. at 1053.
36. Id. at 1072.
37. Id. at 1076.
38. In re Nat'l Collegiate Athletic Ass'n Athletic Grant-in-Aid Cap Antitrust Litig., 375 F. Supp. 3d 1058 (N.D. Cal. 2019) ("Alston"), aff'd 958 F.3d 1239 (9th Cir. 2020) ("Alston II"), aff'dNat'l Collegiate Athletic Ass'n v. Alston, 141 S. Ct. 2141 (2021) ("Alston III").
39. Alston, 375 F. Supp. 3d at 1058.
40. Alston, 375 F. Supp. 3d at 1062.
41. Id.
42. Alston II, 958 F.3d at 1239.
43. Id.
44. SeeAlston, 375 F. Supp. 3d at 1070.
45. Alston II, 958 F.3d at 1239.
46. Id.
47.Id.at 1259.
48. Id.
49. Id.
50. Alston III,141 S. Ct. at 2141.
51. Id.at 2157.
52. Id.at 2158.
53. Id.
54. Id.at 2166 (Kavanaugh, J., concurring).
55. Id.at 2167.
56. Alston III, 141 S. Ct. at 2166.
57. Id.at 2168.
58. Id.at 2167.
59. Id. at 2168.
60. Id.at 2169.
61. Nina Totenberg, The Supreme Court Sides With NCAA Athletes In A Narrow Ruling, NPR (June 21, 2021, 5:45 PM EST), https://www.npr.org/2021/06/21/1000310043/the-supreme-court-sides-with-ncaa-athletes-in-a-narrow-ruling.
62. See e.g., NIL LEGISLATION TRACKER, SAUL EWING, https://www.saul.com/nil-legislation-tracker (last accessed Jan. 21, 2024).
63. Senator Chris Murphy (D-Connecticut) reintroduced the College Athletic Economic Freedom Act during the 2023 congressional session. Other bills that have been introduced include the Protecting Athletes, Schools and Sports Act of 2023, the Amateur Athletes Protection and Compensation Act of 2021, the College Athlete Bill of Rights, , the Collegiate Athlete and Compensatory Rights Act, the Fairness in Collegiate Athletics Act, the Student-Athlete Equity Act, and the Student-Athlete Level Playing Field Act.
64. Michelle Burtlag Hosick, NCAA adopts interim name, image and likeness policy, NCAA (June 30, 2021, 4:20 PM EST), https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-likeness-policy.aspx.
65. Tennessee v. NCAA, --- F. Supp. 3d ---, 2024 WL 755528, at *6 (E.D. Tenn. Feb. 23, 2024).
66. Id. at *2.
67. Id. at *2–4.
68. Id.
69. Id.
70. Id.
71. Tennessee, 2024 WL 755528, at *2–4.
72. Id.
73. Id.
74. Id. at *5.
75. Id. at *6.
76. Id.
77. @RossDellenger, X (formally Twitter) (Dec. 5, 2023, 10:47), https://twitter.com/RossDellenger/status/1732064111050031515? ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1732064111050031515%7Ctwgr%5E8e24385d1c13e0ff2cf234dc8a7070ad53bd58a president-outlines-new-forward-thinking-subdivision-proposal%2F.
78. See, e.g.,Hubbard v. NCAA, No. 4:23-cv-1593 (N.D. Cal. Apr. 4, 2023); In re College Athlete NIL Litigation, No. 4:20-cv-3919 (N.D. Cal. June 15, 2020); Johnson v. NCAA, No. 2:19-cv-5230 (E.D. Pa. Nov. 6, 2019).
79. Grant House v. Nat'l Collegiate Athletic Ass'n, 545 F. Supp. 3d 804 (N.D. Cal. 2021).
80. Id. at 809.
81. Chas Rampenthal, Don't Run Afoul of NCAA Trademarks During March Madness, LAW360 (Mar. 15, 2018, 5:12 PM EST), https://www.law360.com/articles/1022720/don-t-run-afoul-of-ncaa-trademarks-during-march-madness.
82. NCAA Trademarks, NCAA (Nov. 6, 2019), https://www.ncaa.org/sports/2013/12/2/ncaa-trademarks.aspx
83. Kim Bhasin, Gatorade Signs Paige Bueckers as First College Athlete Endorser, BLOOMBERG Quint (Nov. 30, 2021), https://www.bloombergquint.com/onweb/gatorade-signs-basketball-star-bueckers-after-ncaa-endorsements-rule-change.
84. Id.; see also Gatorade, Paige Bueckers x Gatorade 'The Moment, YouTube (Mar. 19, 2022), https://www.youtube.com/watch? v=Vy Q0kCkR_xo.
85.Id.; Kristi Dosh, Paige Bueckers Sings First Major NIL Brand Deal with StockX (Nov. 10, 2021, 12:07 PM EST), https://www.forbes.com/sites/kristidosh/2021/11/10/paige-bueckers-signs-first-major-nil-brand-deal-with-stockx/?sh=291dc53522a7.
86. Bhasin,supranote 71.
87. Id.
88. Tom VanHaaren, Jackson State's Shedeur Sanders is first college football player to sign NIL deal with Gatorade, ANDSCAPE (Jan. 27, 2022), https://andscape.com/features/jackson-states-shedeur-sanders-signs-nil-deal-with-gatorade/.
89. Id.
90. Id.
91. Dean Golembeski, College Basketball Players Cash In With March Madness NIL Deals, BEST COLLEGES (Mar. 21, 2022), https://www.bestcolleges.com/news/analysis/2022/03/21/ncaa-march-madness-college-basketball-nil-deals/.
92. Id.
93. Id.
94. Id.
95. Id.
96. Id.
97. Golembeski,supranote 79.
98. UNC and The Brandr Group Licensing Program for Current Student-Athletes, GOHEELS (July 20, 2021), https://goheels.com/news/2021/7/20/general-unc-and-the-brandr-launch-group-licensing-program-for-current-student-athletes.aspx.
99. Id.
100. Griffin Strom, Ohio State Updates NIL Guidelines, Creates NIL Edge Team to Coordinate Opportunities for Student-Athletes, ELEVEN WARRIORS (Jan. 24, 2022, 11:37 AM EST), https://www.elevenwarriors.com/ohio-state-football/2022/01/128917/ohio-state- updates-nil-guidelines-creates-nil-edge-team-to-coordinate-opportunities-for-student-athletes.
Co-authored with Margaret Esquenet is Vice President and Senior Counsel at Marriott International. Prior to joining Marriott, she was a partner in Finnegan's Washington, DC office.
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