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As an NCAA student-athlete, you are entitled to the “right of publicity.” But what does that really mean? The International Trademark Association defines the right of publicity as “an intellectual property right that protects against the misappropriation of a person’s name, likeness, or other indicia of personal identity—such as nickname, pseudonym, voice, signature, likeness, or photograph—for commercial benefit.” Let’s break that down a little further: 

What are intellectual property rights? 

Intellectual property can broadly be described as any intangible, valuable asset. Something you cannot hold in your hand, but has value. Intellectual property includes trademarks (logos, slogans, nicknames), patents (inventions), and copyrights (artistic works like songs or books). Michael Jordan, our regular intellectual property example, might have trademarks for the Jumpman logo, the letters “MJ” and the number 23. He may hold patents for the designs of the Jordan brand sneakers. Lastly, he likely owns copyrights for the books he has written, like Driven from Within. As a student-athlete, your intellectual property includes: your persona, your name and nickname, image, likeness, signature, logo or symbol, and any other unique identifiers. The main right that you have as an intellectual property owner is the exclusion of others. Other people or companies cannot use your intellectual property without your permission. In other words, no one can use your name, image or likeness, or other intellectual property, without you allowing them to. 

What is misappropriation of your name, likeness, or other indicia of personal identity? 

Misappropriation of your name, likeness, or other indicia of personal identity is fairly straightforward. Simply put, it is someone utilizing your name, image or persona without your permission. It can include a person or company using your NIL on their website, on clothing and apparel, or any other form that is not authorized by you. 

What does commercial benefit mean? 

In order to satisfy the commercial benefit requirement, the person or company misappropriating your NIL must be doing so for the purposes of making money. If they are selling products or services on their website, or selling clothing or apparel with your image, they are doing so for commercial benefit. If someone has posted a picture of you on their social media or made apparel with your name on it only for their personal use (unrelated to any commercial transactions), the commercial benefit requirement has not been satisfied, and you will not have a valid right of publicity claim against them. 

How is the right of publicity different from my trademark rights? 

Right of publicity is a state law claim (and differs sometimes from state to state), while trademark claims are federal claims. While the two are similar, they are not exactly identical. Your right of publicity is related to your commercial value as an individual—your “persona”—while your trademark rights are tied to any logos, symbols, words or phrases that you use in connection with products or services. The two are not exclusive of each other. It is possible that someone can violate your right of publicity and your trademark rights at the same time. In fact, it’s quite common. 

What about news and media? 

News and media are free from right of publicity claims when they are using your name, image or likeness to report on newsworthy events. As a student-athlete, what you do is newsworthy! Both on and off the field, there is a public interest in what you are doing. Unless a news outlet is asserting that you have endorsed their publication when you have not, you will not have a valid right of publicity claim against them, even if all of the elements of a right of publicity claim have been met. This is because of the First Amendment, which protects the freedom of the press.

By Joshua Frieser

Joshua M. Frieser, Esq. is a college sports lawyer and Principal Attorney at Frieser Legal. His practice is focused on the representation of college athletes and working to solve their unique legal needs. Josh represents college athletes in formal NCAA regulatory proceedings and NIL licensing agreements, as well as in related intellectual property and business planning matters.

Collegiate student-athletes entering into Name, Image and Likeness (NIL) endorsement deals should be certain that their NIL deals are in compliance with all applicable rules and laws. Maintaining your NCAA eligibility must be a top priority in order to maximize the value of your NIL. The NCAA has adopted an Interim NIL Policy, instructing student-athletes to follow applicable school and conference policy, or state law. Here is a checklist for college athletes to utilize when considering an NIL deal:

✓ Check your University’s NIL Policy to See What is and is not Permissible

As an example, Indiana University’s NIL policy prohibits student-athletes from utilizing IU’s intellectual property, including its trademarks, logos, or symbols, without prior written permission. Additionally, IU prohibits student-athletes from promoting gambling, alcohol products, tobacco products, adult entertainment, substances banned by the NCAA, or products or services that are illegal.

✓ Check your Conference’s NIL Policy (if your Conference has a Policy)

Not all NCAA conferences have an official NIL policy. Many have delegated the authority to individual schools to enact a policy. As an example of a conference that does have an NIL policy, the Colonial Athletic Association prohibits student-athletes from receiving compensation in exchange for athletics performance, athletic achievement, or as an inducement to enroll or continue attendance at a CAA member institution. Additionally, CAA student-athletes cannot accept compensation for work not actually performed.

✓ Check your State’s NIL Law (if your State has one)

Much like conference NIL policies, not all states have an NIL law in place. The following states have passed an NIL law (as of November 2021): Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, South Carolina, Tennessee, and Texas. Additionally, not all state NIL laws are effective yet—be sure to check the effective date of your state’s law. Some state laws have extensive lists of prohibited NIL deals. For example, New Jersey’s law prohibits student-athletes from signing NIL deals connected to adult entertainment, alcohol, casinos and gambling, tobacco products, prescription drugs, controlled substances, and weapons.

✓ Check with your Compliance Staff

On-campus athletics compliance staff are a valuable resource and should be able to provide guidance if you are unsure of the permissibility of an NIL deal. Your compliance staff has (almost) as strong of an interest in your continuing eligibility as you do!

On July 1st, 2021, the NCAA made headlines by allowing college athletes to monetize their name, image and likeness (NIL) for the first time. Intercollegiate athletes were quick to capitalize on their fame by signing endorsement deals, selling autographs and NFTs, hosting sports camps, creating charitable funds and even launching their own cryptocurrencies. The creativity of brand sponsors and college athletes has helped to grow a dynamic new marketplace. In the past four months, thousands of college athletes have become revenue driving enterprises and have developed serious legal needs—even beyond the ones that you would think of. Here is a list of legal questions that (some) college athletes haven’t thought about yet:

1. Should I Hire an Attorney or Agent to Represent me in NIL Deals?

Okay, most college athletes have thought about this one. But here is why it is still important to do. An effective representative not only understands the current marketplace and can help maximize the value of your NIL, but can also help protect your future interests. Contracts can be long, complex and contain legal terms that are difficult to understand. Well-written contracts can help you achieve future flexibility and ensure that you are protected against litigation or intellectual property issues. Even for a smaller NIL deal, it is still essential to understand exactly what you are agreeing to.

2. Should I Register a Trademark for my Brand or Logo?

A trademark can be a logo, symbol, phrase or word that is associated with you and your brand. Although you do not need to register a trademark in order to receive some legal protection, there are many benefits to having a registered trademark with the U.S. Patent and Trademark Office. The most important benefit is to help protect you from trademark infringement by others. In other words, it protects you against other people or businesses using your brand or NIL without your permission. Additionally, having a valid trademark registration can greatly assist you in enforcing your legal rights if someone is engaging in infringing activity. If you have a personalized logo or are selling merchandise with your branding, a trademark registration is a great option to protect your legal interests.

3. I am Thinking About Hiring an Agent, Tax Professional or Financial Advisor. Should I Have an Attorney Review my Contract with Them First?

The short answer is yes. Much like in NIL contracts, you want to make sure that you know exactly what you are agreeing to in an agreement for professional services. An attorney can help you to understand the various terms contained within those contracts. Additionally, it is important that the terms of the contract are favorable to you. An effective attorney can help draft and negotiate a contract that will be beneficial for you in years to come.

4. I am Giving Lessons or Hosting a Camp. Do I Need to Create an LLC?

There are dozens of legal issues that can come up in connection with providing lessons or hosting a camp for younger athletes. The main concerns include legal liability for injuries or accidents that may occur during the training. Every sport includes some risk of injury for participants. As the lesson provider or camp host, you could be legally and financially liable for an injury that a participant sustains.

An LLC or Limited Liability Company can help protect you legally by limiting your personal liability. An LLC is a corporate entity or business that can enter into contracts, operate your business and open bank accounts. Registering an LLC helps protect your personal assets and limits the liability of a potential lawsuit to only the assets invested in the business.

5. I Want to Host Camps and Enter Into NIL Deals. Should I Create Two Different LLCs?

Creating two separate LLCs—one for your intellectual property (NIL) and one for hosting camps—can be a smart idea. Depending on the value of your NIL, it may be worthwhile to keep your businesses legally distinct. Doing so can help protect you legally by limiting your potential liability if an issue were to arise in either.

Now that we are four months into the “NIL Era,” college athletes have faced dozens of unique challenges, including ones that are more complex than some had initially thought. Sponsored social media posts and endorsements are just the tip of the iceberg. Much more is on the horizon.

The Illinois Men’s Basketball program has announced that Kofi Cockburn has been suspended by the NCAA Eligibility Center for three games for violating the association’s NIL rules in June of 2021. Cockburn was ruled ineligible to compete because he sold institutionally issued apparel and memorabilia on The Players Trunk. The memorabilia sales occurred prior to the NCAA’s change in NIL rules on July 1st, 2021, when Cockburn was considering entering the NBA draft.

The decision from the NCAA Eligibility Center shows that the association will continue to strictly enforce its rules relating to players capitalizing on their name, image and likeness. Cockburn is no exception. Since the July 1 rule change, the NCAA has instructed college athletes to follow the appropriate state laws or institutional policies governing them. It remains to be seen how the NCAA will enforce post-July 1 rules. Enforcement of state laws and school policies may come from institutions, but the three-game suspension of Kofi Cockburn indicates that the NCAA Eligibility Center may continue to hand down suspensions for rules violations.

State NIL laws and institutional policies contain dozens of nuanced rules. While some prohibit NIL deals with conflicting sponsors, others prohibit NIL deals with certain types of businesses, including gambling, alcohol and tobacco companies. These rules will be enforced by on-campus and conference compliance staff, but the NCAA Eligibility Center’s suspension of Kofi Cockburn indicates that the NCAA will continue to be involved in regulating NIL activity, and ensuring that it falls within the rules.