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College Athletes Can Monetize Their Name, Image, and Likeness

Masters of Advertising Law Conference attendees: Scroll down for CLE materials

Speakers discussed how college athletes have leveraged changes in state law to monetize their name, image, and likeness and the unique structure that has developed in and around the NCAA when it comes to brands, agents, donors, and athlete compensation.

Key Takeaways

After conducting a study, in 1984 the NCAA claimed television broadcasting had a detrimental effect on college football game attendance. In response, the NCAA threatened sanctions against universities who sold their own team's broadcast rights. The University of Oklahoma and University of Georgia, who were also members of the College Football Association (CFA) and negotiated a separate TV contract with NBC, filed suit seeking an injunction to prohibit the NCAA from interfering with the NBC television contract. The Supreme Court ruled in favor of the universities, holding that the NCAA's broadcast restriction violated the Sherman and Clayton Antitrust Acts.

In 2015, former UCLA basketball player Ed O'Bannon filed an antitrust class action suit against the NCAA. The plaintiffs challenged the NCAA's rules that restricted athletes from profiting off of their name, image, and likeness. Specifically, the NCAA Basketball 09 video game used O'Bannon's image and likeness without his permission. The athlete plaintiffs argued the NCAA's rules were an "unreasonable restraint on trade."

Despite the NCAA not providing a formal definition, an amateur is typically someone who does not have a written or verbal agreement with an agent, has not profited above his/her actual and necessary expenses or gained a competitive advantage in his/her sport. The district court found for O'Bannon, holding that the NCAA's rules and regulations operated as an "unreasonable restraint of trade" and therefore violated antitrust law. The 9th Circuit Court affirmed, in part, and reversed, in part.

In 2021, current and former Division 1 student-athletes filed a class action suite against the NCAA, challenging the "current, interconnected" set of NCAA rules that limit the compensation they may receive in exchange for their athletic services. In a unanimous nine to zero decision, the Supreme Court held that the NCAA restrictions that prohibited student-athletes from earning compensation for academic-related purposes were in violation of antitrust law. As a a result of this case, student-athletes can now officially make money off of their name, image, and likeness (NIL), including autographs, private coaching, video games, personal appearances, merchandise, and endorsements.

The future of NIL in college sports remains uncertain, as the NCAA is expected to push back against the floodgates being opened. Expect to see more developments regarding booster "collectives" that lure athletes to their school, other "pay for play" and recruiting violations, and more legislation and lawsuits regarding NIL.

CLE Materials

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