Do College Athletes Have a Free Speech Right to Control Use of Their Own Name, Image, and Likeness?
By Andrew Parry ’22
In May 2013, an unnamed collegiate golfer on the west coast was penalized for washing her car with a university hose, deemed an impermissible benefit of her student-athlete status. By December 2021, University of Alabama quarterback Bryce Young had signed his 14th endorsement deal, bringing his total value to over $1 million.
The stark contrast between the two situations represents the wide and messy spectrum of issues the National Collegiate Athletic Association (NCAA) has faced with its name, image, and likeness (NIL) policy in recent years.
Many feel that NIL policy has severely limited the ways student-athletes can express and conduct themselves, in effect curbing their speech more strictly than that of any other students. The stakes are high. If it were ever ruled that the use of their name and status violated such a policy, college athletes could not only be penalized, but also declared ineligible to play. And in the wake of major changes to NIL rules, college sports has entered into uncharted terrain.
For some time, significant controversy has existed over NIL policy that, in the words of 9th U.S. Circuit Court of Appeals Judge Jay S. Bybee, prohibited “student-athletes from being paid for the use of their names, images, and likenesses.” NIL rules were so strict, that even having a personal Youtube channel that received advertising revenue or starting a small business were considered illicit profiteering from student-athlete status.
But with 24 schools making more than $100 million each from athletics in 2015 alone, the system’s inequity had left many frustrated. The first domino to fall came that year, when the landmark case O’Bannon v. NCAA was decided in the 9th Circuit Court of Appeals.
Ed O’Bannon, a former NBA player and UCLA college basketball star, discovered his NIL had been used without his knowledge, consent, or compensation in a popular college basketball video game. O’Bannon filed a class-action lawsuit on the grounds that the NCAA had violated antitrust and trade laws under the Sherman Antitrust Act, an 1890 federal law that prohibits organizations from restricting free and fair commerce.
The case was first decided in August 2014 by U.S. District Judge Claudia Wilken of the District of Northern California, who ruled in favor of O’Bannon and the other plaintiffs.
The NCAA appealed the decision, but the appellate court reaffirmed it had indeed violated the Sherman Act, finding that rules barring athletes from profiting from their NIL unlawfully restricted trade. However, it reversed part of Judge Wilken’s decision that would have potentially allowed colleges to provide direct cash compensation to athletes, meaning such payments would remain illicit. Once the Supreme Court declined to take up and reconsider the case, the decision brought the multimillion-dollar industry that was college sports video gaming to an immediate halt. EA Sports’ “NCAA Basketball” series released its last installment in 2009, and “NCAA Football” was last made in 2013.
But it took years for the floodgates truly to open.
In September 2019, California state legislators passed S.B. 206, commonly called the “Fair Pay to Play Act.” Signed into law that year by Gov. Gavin Newsom (D), the bill stated California colleges and universities could not stop students “from earning compensation as a result of the use of the student’s name, image, or likeness.” Furthermore, it protected institutions from NCAA sanctions and said university scholarships should not be considered “compensation.”
Immediately, NCAA leadership slammed the bill’s content, with The Atlanta Journal-Constitution quoting several officials calling it “unconstitutional,” “harmful,” and even an “existential threat.” Even so, in an effort to “cede some ground on the issue,” NCAA leadership began to redraft NIL regulations as other states pondered taking similar action.
In June 2020, Gov. Ron DeSantis of Florida signed S.B. 646, guaranteeing student-athletes at Florida colleges and universities the right to sign NIL endorsement deals. Notably, the Florida bill introduced the first restriction on what NIL deals could be signed, stating, “The bill prohibits an athlete from entering into a contract for NIL compensation if a term of the contract conflicts with a term of the athlete’s team contract.” This bill’s passage triggered a wave of similar laws across the country, with nine states passing NIL protection laws by May 2021.
In June 2021, athletes received a somewhat indirect victory in a different case that did make it to the U.S. Supreme Court, National Collegiate Athletic Association v. Alston. Specifically, the court found any education-related perks, aid, or compensation could not be limited by the NCAA, as there are no such restrictions for non-student athletes. While not directly related to NIL profit rights, it was an important first step in rolling back the NCAA’s breadth of control over the treatment of student-athletes.
Regarding the original district court decision in this dispute, Associate Justice Neil Gorsuch wrote, “On no account, the court found, could such education-related benefits be ‘confused with a professional athlete’s salary.’” In effect, the NCAA could no longer limit the benefits a university offers student-athletes, provided the benefits are accessible to all students.
While ruling that benefits for regular students should also be available to student-athletes, the court did not immediately deliver a stance on non-athlete NIL and endorsement deals. However, the decision bolstered the idea that being able to use one’s own NIL should not depend on whether or not one participates in college sports.
In a concurring opinion, Associate Justice Brett Kavanaugh wrote that beyond the scope of the case at hand, “the NCAA’s remaining compensation rules also raise serious questions under the antitrust laws,” adding that while the court was not ruling on any other NCAA regulations related to student-athlete compensation, its “decision establishes how any such rules should be analyzed going forward.” All told, Kavanaugh’s opinion was an indictment of NCAA operations, opening the door to future challenges to the organization’s compensation policy.
As of May 6, 2022, at least 42 states have, at a minimum, entered into formal discussion procedures regarding NIL-related legislation. According to Business of College Sports, which tracks the various bills, 27 states have signed into law their own set of rules and regulations regarding student-athletes’ NIL rights as they see fit (though Alabama repealed its law in February 2022).
While this can be viewed as a win for Free Speech in the world of college sports, various restrictions remain ongoing. Importantly, these regulations are now coming from public entities, not private ones like the NCAA.
On June 30, 2021, the NCAA announced an “interim” policy on athletes’ NIL rights. The policy stated, “Individuals can engage in NIL activities that are consistent with the law of the state where the school is located” and added that “individuals can use a professional services provider for NIL activities.”
At that time, NCAA President Mark Emmert admitted the new policy was rather vague, saying that the lack of clear federal legislation “prevents [the NCAA] from providing a more permanent solution and the level of detail student-athletes deserve.”
Immediately, the seal was broken, and NIL representation agencies cropped up overnight. Athletes began signing endorsement deals left and right. The swiftness with which NIL deals began to materialize left many states and colleges scrambling to keep up. However, the “anything goes” environment did not last long.
As state laws went into effect, universities adapted, drafting their own policies. When considering rules put into place by public universities and state legislatures, any restrictive NIL regulations could constitute a challenge to student-athletes’ First Amendment rights.
For instance, even before the NCAA relaxed its official policy, a June 24, 2021, executive order from Kentucky Gov. Andy Beshear (D) decreed that student-athletes had a right to profit from their NIL, but it forbade agreements “in conflict with an existing contract of endorsement, promotional or other activity entered by the postsecondary educational institution.” Essentially, if any Kentucky college had a previous contract with a company (Nike, for example), a student-athlete could not enter into an NIL agreement with a competitor (such as Adidas).
Another Kentucky restriction banned NIL deals involving products “such as, but not limited to… alcohol, tobacco products, firearms or sexually-oriented activities” on the grounds that such agreements are “incompatible or detrimental to image, purpose, or stated mission of the postsecondary educational institution.”
West Virginia University (WVU) adopted similar regulations, but with one key addition. Beyond the specific bans of “vices” such as alcohol, tobacco, and gambling services, another rule states, “Activities which are, in WVU’s sole judgment, misleading, offensive, or in violation of a statute, law, ordinance, NCAA bylaw, or any University contract obligation” would also be deemed impermissible. If the school’s leadership takes issue with an NIL deal, it can declare it to be in violation of school policy, putting the athlete’s status in jeopardy.
The University of Wisconsin’s policy is equally vague, as it gives discretion to university officials, prohibiting any deals determined to “adversely affect the University’s reputation.” Mississippi’s state law on NIL deals has a similar provision banning product endorsement “that negatively impacts or reflects adversely on a postsecondary education institution or its athletic programs.”
In a piece for The Conversation, Sam C. Ehrlich and Neal Ternes reference the meteoric rise to fame of Saint Peter’s University basketball player Doug Edert. Originally an unknown entity, Edert gained notoriety for his role in Saith Peter’s run to the NCAA Tournament’s Elite Eight round of games in March 2022, which many saw as a miraculous feat. Ehrlich and Ternes noted that during the surreal two-week period, Edert inked endorsement contracts with restaurant chain Buffalo Wild Wings, as well as polarizing sports/lifestyle company Barstool Sports.
Edert’s agreement with Barstool was notable because of the company’s various forays beyond its initial presence as a semi-satirical sports news outlet. The company has its own vodka label, podcasts containing sexually explicit content, and an online sports betting platform, all of which would present an issue under anti-vice policies.
For Saint Peter’s University, located in Jersey City, New Jersey, a state NIL law holds that organizations related to or associated with “adult entertainment products and services; alcohol products; casinos and gambling, including sports betting” are off limits for student-athletes seeking endorsement deals. Therefore, Edert’s deal with Barstool would be a violation. The law does not go into effect until 2024, but it would restrict New Jersey’s student-athletes from entering into such agreements. Edert has since announced his intent to transfer to Bryant University in Rhode Island, but it was unclear whether NIL laws played a part in his decision.
Edert’s story could be a cautionary tale. As more athletes sign increasingly lucrative NIL agreements, it potentially increases the likelihood that these young people could run afoul of state or university policy. Legal issues between student-athletes and their institutions or state governments appear inevitable, and precedent seems to be on the side of the students.
The American court system has not been kind to vague, open-ended legislation that has the potential to limit Free Speech. The 6th Circuit Court of Appeals case Dambrot v. Central Michigan University saw a campus harassment/hate speech policy overturned. In the court’s opinion, the policy was too broad, creating an environment under which, according to Circuit Judge Damon Keith, “Defining what is offensive is, in fact, wholly delegated to university officials.”
The court’s ruling that such a policy was unconstitutional at a state university is important when considering these provisions in state and other public universities’ laws. The WVU policy that leaves all final decisions to the sole discretion of the school presents the same problem. The vagueness of several states’ policies on nebulously “antithetical” brand relationships accomplishes the same constitutionally dubious end. It leaves the definition of “antithetical” up to the schools, creating a dangerously subjective standard for what is acceptable and what is not.
Ultimately, the NIL bonanza of the last three years led to a perfect storm of disorder, conflict between public and private organizations, and a hodgepodge of public opinion. The resulting outcome was an ill-defined, multimillion-dollar industry, regulated by hastily crafted, loosely fitting pieces of legislation.
The issue, of course, is that the legislation itself cannot stand without presenting a constitutional threat to student-athletes’ Free Speech rights to use their own NIL as they wish. Of the 27 states with NIL bills or executive orders already signed into law, 20 have sections flatly prohibiting student-athletes from signing NIL deals that would compete with university contracts. Six more allow for competing endorsements away from official team events (e.g., filming an Adidas ad on one’s own time, but not wearing Adidas merchandise during practice or games). Of all the states with NIL laws, only New Mexico has no such provisions.
Twelve states have laws that specifically prohibit NIL deals endorsing objectionable content (including some, or all, of alcohol, tobacco, other drugs, gambling, weapons, and adult content). Connecticut, North Carolina, and Nevada authorize schools to prohibit deals they find to be antithetical to institutional values. Ohio has a similar policy, but it outlines the aforementioned vice categories that may be banned at schools’ discretion.
The language in these laws further restricts how student-athletes can market themselves and profit from their own NIL. Based on precedent found in Dambrot and other similar cases, the vague, overbroad language found in many state and school policies probably will not survive legal challenges. The courts will likely side with aggrieved student-athletes.
While the operation of college sports has fundamentally changed over the last decade, a new era of student-athletes monetizing their fame has not been without its chaos, leaving many uncertain as to what the landscape will look like when the dust settles. In July 2021, ex-NBA player and newly minted NIL consultant Jerome Williams famously quipped that the new NIL rules would turn college sports into “the wild, Wild West.”
As the anarchy Williams correctly identified is hastily reined in, how these new laws affect the NCAA, member schools, and the Free Speech of student-athletes they govern must be closely monitored.