Sports

It's Coming For College Athletes, But What Exactly Is Name, Image, Likeness (NIL)?

The first state to have expressly provided the right of publicity to individuals by way of statute was New York, in 1903.

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Multiple federal bills have been crafted with the intention to provide college athletes with the right to commercially exploit their names, images, and likenesses (including this). Five states have already passed legislation and had their respective governors sign the bills into law with regard to college athletes’ commercial use of their names, images, and likenesses (NIL), with Florida currently the first to make the law effective, on July 1, 2021.

Whether the federal government, NCAA, or more states act first to provide college athletes with these same rights that most of their colleagues currently enjoy has yet to be made clear. However, at this time, hardly anyone is willing to publicly disagree with the fact that rights of publicity are those that should be enjoyed by all college students, including athletes. That was not always the case.

With monumental change on the horizon, one may wonder where this right to commercialize one’s identity came from and why it has become such a big deal as of late. Furthermore, it is worth noting that one’s right to control and exploit one’s publicity rights often includes, but is not limited to, name, image and likeness, and the same should be true with regard to the rights that college athletes are about to begin enjoying. Rights of publicity can extend to the use of one’s voice, signature, nickname, jersey number, and even gestures or mannerisms.

What may be surprising to some is that a person’s right of publicity has not been codified by statutes in all 50 states. Only about half of all states have created statutes concerning these rights. The vast majority of states have; however, recognized such rights by way of common law, and the prevailing view is that unless a state has outright rejected the right, it is determined to be a right possessed by constituents in such jurisdiction.

It is interesting that currently no national law providing all individuals with a codified right of publicity exists, yet there are multiple bills proposed to create a federal protection to college athletes. In theory, college athletes could go from being one of the least protected classes with regard to rights of publicity to the most shielded group of individuals in the United States. A fair question to ask of Congress is why not expand the focus of recent efforts to propose a national right of publicity bill to cover all individuals, with specificity afforded to cover college athletes against any wrongdoing of the NCAA or member institutions?

The first state to have expressly provided the right of publicity to individuals by way of statute was New York which, in 1903, made it unlawful for anyone to use the name, portrait, or picture of any living person without prior consent for advertising purposes or purposes of trade. Originally, New York viewed these rights as a byproduct of an individual’s right to privacy. It was not until 50 years later that the Second Circuit Court of Appeals would distinguish an individual’s right to publicity from his right to privacy.

The big challenge to rights of publicity claims is the First Amendment, which provides, in part, freedom of speech that allows use of another’s identity, but in limited circumstances. One such exception is when a person’s publicity rights are used for newsworthy purposes. Where this could come into play for college athletes is when a third party decides to use a player’s name, image, or likeness for entertainment and amusement purposes as opposed to true commercial exploitation. As such, third-party uses will need to be properly vetted prior to any action being taken based on potential claims of misappropriation.

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In conclusion, the rights that will soon be offered to college athletes truly go beyond name, image, and likeness and are part of a complex area of the law that covers an individual’s right to publicity. It is a right that was conceptualized only a century ago and is still not uniform throughout the 50 states. While some on Capitol Hill appear to be enamored by the thought of providing a national right to college athletes, they may want to take a step back and consider whether a national right should be afforded by law to all Americans.

Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

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