In the United States, name, image, and likeness (“NIL”) are the three elements that make up a legal concept known as the right of publicity. The right of publicity is an intellectual property right that protects against the misappropriation of a person’s name, likeness, or other forms of personal identity—such as nickname, pseudonym, voice, signature, likeness, or photograph—for commercial benefit. NIL compensation is compensation, typically money, earned by athletes for their NIL.
Prior to July 1, 2021, NCAA regulations prevented student-athletes from receiving any form of compensation, despite immense pressure from players and fans. This pressure escalated in light of the United States Supreme Court’s recent unanimous decision in NCAA v. Alston, when the Court declined to grant the NCAA immunity from federal antitrust laws and held that athletes can receive “extra-educational benefits” from their institutions. As a result of this decision and various pending state laws, the NCAA will now allow student-athletes to benefit from their marketability, namely NIL rights during their tenures as college athletes.
While NCAA athletes are now able to monetize their social media accounts, sign autographs, coach camps, and participate in advertising campaigns, these athletes must protect their brands through an effective trademark strategy. There are multiple aspects of an athlete’s NIL that can be trademarked, but the focus should be on the athlete’s name, logo, or slogan.
Name, logo, or slogan recognition will have a direct correlation in an athlete’s ability to monetize their likeness. Obtaining a trademark on these items prevents other parties from distributing products using that name, logo, or slogan without the athlete’s permission. Athletes may then use the trademarked NIL to build a brand, be it through social media, merchandise sales, advertising campaigns, or signing autographs.
Limitations Under the NCAA’s Interim Policy
The NCAA’s waiver of NIL restrictions does not create a free-for-all for college athletes. This is not a “pay-for-play” model of college athletics, and the NCAA has made clear this is an interim move until federal legislation is in place. However, as it stands, state legislation and universities will have an oversight role in the athlete’s NIL rights.
For example, athletes in Texas will be prohibited from endorsing alcohol, tobacco products, and sports betting. Further, universities have the power to object to deals that conflict with existing agreements the university has—i.e., a university football player may have issues endorsing Adidas when the university is sponsored by Nike. In most cases, athletes will be prohibited from displaying school marks or logos while monetizing their own NIL. For states that have passed laws related to NIL, universities are responsible for determining whether athletes’ NIL activities are consistent with state law. In states without NIL laws, such as Louisiana at present, athletes may engage in NIL activities without violating NCAA rules that have historically prohibited an athlete’s ability to monetize their likeness.
What Comes Next?
Federal legislation will likely provide student-athletes across the country with a uniform policy on how best to monetize their NIL in a fair, efficient manner. The most effective way for college athletes moving forward to protect their names and brands is by filing trademark applications, particularly for endorsement services and specified products. Athletes will then be able to accept sponsorship deals, market products, and create their own brands, while simultaneously protecting their NIL through a trademark strategy.
The authors wish to thank their law clerk, Cullen McDonald, for his assistance in preparing this article.