By: Brooke Gary
Following a new National Collegiate Athletic Association (“NCAA”), policy, many collegiate student-athletes are now adding “influencer” or “content-creator” into their already busy schedules. On July 1, 2021, the NCAA approved interim policy changes that allow NCAA athletes to make money from their name, image, and likeness (“NIL”), regardless of whether their state has a NIL law in place or not. As a result, many college athletes have found themselves sitting on a social media gold mine and have begun signing brand deals and working to capitalize on the influencer industry. While many NCAA athletes are excited for the opportunity to profit off their NIL, changes to the NCAA’s longstanding policies also pose concerns for the future of college sports.
NIL are three elements that make up a legal concept known as “right of publicity.” Put simply, NIL is a person’s personal brand and NIL rights allow all Americans to publicize and sell their brand. NIL is therefore not a pay-for-play model, which would allow student-athletes to be paid directly from a school in exchange for participating in a sport. In the professional sport space, NIL includes the usage of an athlete’s name on a jersey for sale or an athlete making an appearance on a commercial or advertisement. For non-athlete college students, NIL rights allow them to profit from making social media content or being an influencer. However, prior to NCAA’s new policies, student-athletes, unlike professional athletes or other students, forfeited the right to sell their NIL as part of the terms of signing their scholarship agreements. The NCAA enforced such policies in order to preserve “amateurism,” the concept that college athletes are not professionals and therefore do not need to be compensated like professionals. Thus, until recently, NCAA athletes were prohibited from profiting in any way from endorsements, social media content, or the general use of their personal brand.
The transformative shift in NCAA’s policy to allow student-athletes to earn money from their NIL comes after more than a decade of legal and public pressure. At the forefront of these challenges was the case of O’Bannon v. National Collegiate Athletic Association, which challenged the NCAA’s rules under federal antitrust laws that prohibited unreasonable restraint on trade. In 2009, Ed O’Bannon, a former UCLA men’s basketball player, filed a lawsuit against the NCAA and the Collegiate Licensing Company after he discovered his image and likeness was being used in the popular EA Sports video game, NCAA Basketball 09, without his permission and without providing him compensation. In 2014, the District Court ruled in favor of O’Bannon, which led to the discontinuation of the EA Sports video games. However, the court’s ruling did not directly change the specific rules regarding NIL compensation, and in 2016, the Supreme Court denied certiorari of the case.
After the O’Bannon decision and numerous antitrust suits that followed, individual states began considering legislation to grant NIL rights to student-athletes. In 2019, California established “The Fair Pay to Play Act,” which makes it illegal for athletic associations to prevent student-athletes from earning compensation for the use of their NIL. Following in California’s footsteps, at least 19 other states passed similar laws, each with their own unique approach to how student-athletes can profit off of their NIL. The NCAA recognized that varying state laws would create inequity among schools, and began working to reform its own NIL compensation rules. However, before the NCAA was able to vote on its newly proposed rules, the U.S. Department of Justice expressed concern over potential antitrust violations in the NCAA’s new rules. In response, the NCAA delayed the vote and adopted the interim policy that is currently in place. The interim policy allows college athletes to engage in NIL activities that are consistent with the law of the state where their school is located, while also allowing athletes who attend a school in a state without a NIL law to engage in NIL activities without violating NCAA rules.
Following the adoption of NCAA’s interim NIL policy, many student-athletes immediately capitalized on the opportunity to profit from their NIL. In just the first few months, college athletes have signed deals with tech companies, pet care stores, and restaurants, while others have announced plans to sell their own T-shirts and build their own personal brands on social media. Twins Hanna and Haley Cavinder, who both play basketball at Fresno State, were the first athletes to get a brand partnership. Just days after the NCAA’s new NIL policy went into effect, the Cavinder twins signed major sponsorship deals with Boost Mobile and Six Star Pro Nutrition. The twins are also viral Tik Tok stars with over 3.4 million followers. With the NCAA’s new policy allowing the twins to earn money from social media content, it is estimated that the twin’s Tik Tok account could make them over $520,000 annually. Like the Cavinder twins, many others NCAA athletes are now no longer just college-athletes. They’re also content-creators, influencers, and businesspeople with a collective goal: to get what they’re worth.
While the NCAA’s interim policy allows athletes to capitalize on their NIL and enter long-term deals that will last beyond their collegiate athletic careers, opponents of the policy believe that it may damage college athletics. These opponents worry that the new NIL rules will create competition and jealousy among teammates, as not all players will be offered deals or be able to make money off their NIL. Perhaps most importantly, however, opponents argue that the new policy will cause winning to become secondary to an athlete’s desire to play for a school that will maximize their financial portfolio. As a result, student-athletes may transfer or choose a school to attend based on the NIL rules in the state where a school is located.
The NCAA, however, acknowledges these concerns and is trying to work with Congress to solidify uniform, federal legislation. NCAA President Mark Emmert admitted that the rules currently in place are confusing, but explained that the organization is hoping to “develop a solution that will provide clarity on a national level.” While Emmert understands that, due to the current legal and legislative environment, a federal solution will not happen in the next few months, he is hopeful and optimistic that Congress will eventually pass a NIL bill. In the meantime, the NCAA is encouraging student-athletes to consult an attorney or professional service provider before entering brand deals or NIL agreements, as well as monitoring how NIL laws in other states are working in order to provide the best clarity and guardrails around what fits and what doesn’t fit. For now, fans can expect to see many of their favorite collegiate athletes featured in advertisements or likely showing up more often on their Instagram, Tik Tok, and other social media platforms.
Student Bio: Brooke Gary is a second-year law student at Suffolk University Law School. She is a staffer on the Journal of High Technology Law. Brooke received a Bachelor of Arts Degree in English and Government from Colby College.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
