Companies should continue to address rights of publicity provisions in their sponsorship agreements and avoid using college athletes' names, images, or likenesses without authorization.
On October 29, 2019, the NCAA board announced that student-athletes will have an opportunity to "benefit" from the use of their names, images, and likenesses in a "manner consistent with the collegiate model." The NCAA has directed its three sports divisions to consider rule and policy updates by January 2021, using a set of NCAA principles and guidelines to limit any changes that risk corroding the amateur nature of collegiate sports.
The NCAA's vote on this issue comes after the passage of California legislation in September and a surge of proposed legislation in a dozen states. The NCAA has criticized the California law, calling it unconstitutional and cautioning that disparate sets of state laws would undermine the uniformity of national rules and disrupt the level playing field for student-athletes.
Though the NCAA's decision provides for additional flexibility over time, it does not permit student-athletes to receive compensation for athletic performance or participation. Moreover, the announcement's use of the word "benefit" (as opposed to "compensation") and its reference to the "collegiate model" suggest that the NCAA and its member institutions may consider restrictions that limit pure cash payments to student-athletes or require compensation to be tethered to education.
It is not yet clear how the rules and policies will change within the various divisions of the NCAA, but the next two to three years may generate a new market for corporate endorsement and sponsorship for student-athletes as it relates to licensing their rights of publicity. Revised NCAA bylaws and policies could create new partnership opportunities for corporate sponsors that have or want to have an affiliation with collegiate sports through media, commercial products, or services to increase their consumer base and enhance their image nationally. Companies should continue to monitor this potential opportunity, address rights of publicity provisions in their sponsorship agreements, and avoid using college athletes' names, images, or likenesses without authorization.
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