Since the beginning of the “NIL era,” NCAA student-athletes have had the opportunity to utilize their Name, Image, and Likeness (NIL) for commercial purposes while maintaining their NCAA eligibility. Much like professional athletes, college athletes have engaged in sponsored social media or “influencer” advertising, signing autographs, memorabilia sales, paid public appearances, and product endorsements. One important difference between the endorsement deals that NCAA student-athletes can sign and the ones that professional athletes can sign is in relation to in-game sponsored apparel.
In many cases, professional athletes are allowed to wear sponsored, branded apparel containing corporate logos while on the court or field of play. NCAA student-athletes are not able to do so, even though they can now capitalize on their NIL off of the court or field. The primary reason for this is federal labor law, which permits unionized employees to collectively negotiate conditions of their employment. Because most professional athletes are members of a union (the NBPA, NFLPA, MLBPA, NHLPA), they are able to negotiate the extent to which they can wear sponsored apparel during competition.
Although it is subject to substantial debate and may evolve over time, courts have consistently determined that NCAA student-athletes are not employees for labor law purposes. For now, student-athletes are not able to unionize and collectively bargain. The NCAA and its member conferences and universities ultimately determine what student-athletes are allowed to wear during competition. As of 2021, student-athletes are not allowed to utilize their NIL during competition.
The Key Difference for Professional Athletes
Professional athletes’ ability to wear sponsored apparel on the court or field of play is regulated by a collective bargaining agreement (CBA). A CBA is a labor agreement between an employer (or group of employers) and employees. Professional athletes are able to collectively negotiate the terms and conditions of their employment with their employers—the team owners. Those negotiated terms and conditions can include individual salary maximums and minimums, contract length maximums and minimums, a team salary cap or floor, as well as other details, including travel, facilities, trainers, medical staff, health insurance, and sponsored apparel players are allowed to wear during competition.
Each professional sports league has a different CBA. The terms can differ substantially from league to league. In terms of on-court sponsored apparel, the National Basketball Association’s CBA requires that players only wear items supplied by the team as part of their uniform. The uniform includes their jersey, shorts, socks, kneepads, headbands and wristbands. Because Nike has an exclusive contract with the NBA, all uniforms include Nike products. Importantly, however, the NBA players have negotiated an important exclusion—sneakers. NBA players are allowed to wear any brand of sneakers that they want since sneakers are not considered part of the uniform. This provision in the NBA CBA allows players to sign on-court endorsement deals with Nike, Adidas, Under Armour, Puma, New Balance, or any other sneaker brand of their choosing.
Likewise, the recently expired Major League Baseball CBA permits players to wear sponsored corporate logos on their equipment, subject to certain size restrictions. MLB players are allowed to sign endorsement deals for logos on their batting gloves, elbow and shin guards, catching equipment (chest protectors, knee/shin guards, and masks), sunglasses, and wristbands. Like NBA players’ sneakers, this sponsored equipment can be from any brand: Nike, Adidas, Under Armour, Franklin, Rawlings or any other.
Rules for Student-Athletes
The NCAA’s interim NIL policy only states that a student-athlete’s eligibility will not be affected by his or her engagement in NIL activity. In suspending Bylaw 12 (which governs amateurism and athletics eligibility) enforcement, the NCAA currently does not have a direct rule restricting student-athletes from wearing sponsored apparel on the field or court, aside from traditional uniform rules. The NCAA uniform rules do allow for student-athletes to wear commercial logos on their uniforms, but the commercial logos that appear on uniforms and equipment are negotiated by schools, not student-athletes.
While the NCAA may ultimately pass legislation on the issue, it has directed student-athletes to their respective state laws and institutional policies on NIL. Some state laws directly prohibit student-athletes from entering into NIL contracts that conflict with institutional sponsors entirely. California’s NIL law prohibits student-athletes from entering into an NIL contract “if a provision of the contract is in conflict with a provision of the athlete’s team contract.” If a California student-athlete attends a school that has a sponsor for a particular product, they may not be able to sign an NIL deal with a different company that offers similar products. For example, Ready Nutrition is the official protein of the UCLA Bruins. UCLA student-athletes would not be able to sign NIL deals with another protein company under California state law.
Additionally, many NCAA institutions also prohibit student-athletes from entering into NIL contracts that conflict with athletic department sponsorships. For example, Marquette University’s NIL policy states that “NIL activity may not conflict with an existing institutional sponsorship agreement or other contract of Marquette University.” Marquette student-athletes would not be able to sign NIL deals with Adidas or Under Armour for on-court or on-field apparel (sneakers, cleats, gloves, headbands… etc.), as Marquette has a sponsorship contract with Nike/Jordan, which includes uniforms and accessories for student-athletes.
For now, student-athlete NIL activity is only allowed off the court or field of play. College athletes are not able to sign NIL deals to wear a particular brand of equipment or accessories during competition. Ultimately, antitrust law or labor law may have an impact on NCAA athletes’ ability to wear sponsored apparel in-game, but under current NIL rules, student-athletes should not try to utilize their NIL for in-game sponsorships, or they could have eligibility issues or breach of contract concerns.
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.
