NAME AND IMAGE AND LIKENESS. OH MY! TENNESSEE LEGISLATION AND NCAA RULES FOR STUDENT-ATHLETES IN THE NEW ERA OF COLLEGE SPORTS “I don’t always drink sweet tea, but when I do, I prefer Milo’s.” - Bo Nix, Starting QB for the Auburn Tigers (probably) All kidding aside, Name, Image, and Likeness (“NIL”) deals have been all over the media ever since July 1, 2021, when the NCAA Division I Board of Directors instituted a new policy allowing for Division I (“D-I”), Division II (“D-II”), and Division III (“D-III”) student-athletes to profit from their NIL, regardless of if the relevant state has laws in place yet. This policy has allowed for sponsorships like: • • • • •
Hanna Cavinder and Haley Cavinder (Fresno State Women’s Basketball) - Boost Mobile; Bo Nix (Auburn QB) and Malachi Moore (Alabama Defensive Back) - Milo’s Sweet Tea (smart move by Milo’s, playing both sides of that rivalry); Derek Stingley, Jr. (LSU Cornerback) - Walk-On’s Bistreaux & Bar; Trey Knox (Arkansas Wide Receiver) – PetSmart; and, the entire offensive line of the Notre Dame Fighting Irish - Jet’s Pizza.
For $25 you can even get a personalized message from the Tennessee Volunteers starting quarterback, Joe Milton III, on Cameo. The list of NIL deals could truly go on and on. But why and how is this happening, you might ask. Well, it starts with intellectual property rights. What is Name, Image, and Likeness? NIL rights are based on the idea that you have property rights in your own person. NIL rights therefore grant one an exclusive right to control the commercial use of one’s name, image, or likeness, and the ability to prevent others from exploiting their NIL for economic gain. Keep in mind, though, that NIL rights are subject to First Amendment defenses which would allow for use of one’s NIL in certain circumstances (educational, newsworthy, transformative, etc. uses). NIL rights are protected by state statute or state common law,
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but not all states protect NIL in the same way. For example, some states protect NIL as a part of a Right to Privacy1, others specifically recognize a Right of Publicity2, and still others protect NIL under trade practice-type statutes (like Tennessee3). Federal law is involved only if an individual has trademarked their likeness (tough to do as one must prove a commercial activity/brand is linked to their likeness, think Newman’s Own salad dressing), or if false advertising under the Lanham Act is implicated. Now, student-athletes have always had these rights. It is just that they were not allowed to use them without being punished by the NCAA and/or their school for any NIL-related commercial activity (signing jerseys, selling memorabilia, etc.). The reasoning behind the prohibition was basically that the NCAA believed it was necessary to preserve the amateurism of college athletics. While the battle over NIL is not new4, things came to a head with the Supreme Court’s decision in NCAA v. Alston. NCAA v. Alston This case could encompass its own book chapter, but here are the highlights. On March 5, 2014, Shawn Alston, former West Virginia running back, filed an antitrust action against the NCAA. Mr. Alston took issue with NCAA rules which limited the amount of compensation a student-athlete could receive in connection with their athletic services, alleging that these limits violated the Sherman Antitrust Act. Several other D-I student-athletes followed suit and eventually obtained class certification. The Northern District of California found in part for the Plaintiffs and entered a permanent injunction against the NCAA preventing it from limiting educationrelated compensation or benefits (think scholarships, payment for tutoring, books, paid internships, etc.). Both sides appealed the decision, with the Plaintiffs arguing that the NCAA should have been enjoined from any and all compensation limits and the NCAA of course arguing that the district court went too far by prohibiting it from limiting education-related
DICTA
October 2021
