A Short Treatise on College-athlete Name, Image, and Likeness Rights: How America Regulates College Sports' New Economic Frontier

• Publication year: 2022

A Short Treatise on College-Athlete Name, Image, and Likeness Rights: How America Regulates College Sports' New Economic Frontier

John T. Holden

Marc Edelman

Michael McCann

A Short Treatise on College-Athlete Name, Image, and Likeness Rights: How America Regulates College Sports' New Economic Frontier

Cover Page Footnote

All authors contributed equally to this Article. * Associate Professor, Spears School of Business, Oklahoma State University. ** Professor of Law, Baruch College, Zicklin School of Business, City University of New York. *** Professor of Law, Director of the Sports and Entertainment Law Institute, University of New Hampshire, Franklin Pierce School of Law.

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A SHORT TREATISE ON COLLEGE-ATHLETE NAME, IMAGE, AND LIKENESS RIGHTS: HOW AMERICA REGULATES COLLEGE SPORTS' NEW ECONOMIC FRONTIER

John T. Holden,^* Marc Edelman,^** Michael A. McCann^***

For the past seventy years, intellectual property law's right of publicity has allowed for celebrities to monetize their names, images and likenesses for commercial gain. Until recently, the National Collegiate Athletic Association's (NCAA) internal Principle of Amateurism excluded college athletes from the endorsement marketplace, keeping the wealth of college sports in the hands of a select few administrators, athletic directors, and coaches.

Following years of mounting pressure from the college-athletes' rights movement, a number of states recently announced new laws to ensure college athletes the right to endorse products free from NCAA interference. As such, the NCAA begrudgingly relented on June 30, 2021, and deregulated certain aspects of its Principle of Amateurism. For the first time, the NCAA allowed individual schools and conferences, rather than the association itself, to dictate what name, image, and likeness (NIL) deals their athletes may enter.

A great deal of confusion and ad hoc development of policies by people who have never before been responsible for policing these types of activities has followed. In an ironic twist, many states that passed and implemented NIL laws have been placed in a position where they have more restrictions on college athletes in place than schools in states that never passed NIL laws. This Article, or perhaps more accurately, this Short

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Treatise, provides a comprehensive overview of the history of the right of publicity and discusses the legal risks facing the NCAA, collegiate conferences, schools, and athletes in this new world of college sports.

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TABLE OF CONTENTS

I. INTRODUCTION.......................................................................5

II. A BRIEF OVERVIEW OF THE RIGHT OF PUBLICITY.................7

A. ORIGINS OF THE RIGHT OF PUBLICITY...........................8

1. A Balancing Act.................................................10
2. An Evolution......................................................11

B. THE MODERN RIGHT OF PUBLICITY.............................14

III. SPORTS AND THE RIGHT OF PUBLICITY..............................15

A. THE ROLE OF IMAGE RIGHTS IN SPORTS...................... 16
B. PROFESSIONAL SPORTS AND THE RIGHT OF PUBLICITY............................................................ 18
C. BALANCING ATHLETE PUBLICITY RIGHTS AGAINST THE FIRST AMENDMENT..............................20

IV. THE AMATEURISM MODEL AND COLLEGE SPORTS INDUSTRIAL COMPLEX........................................................22

A. A BRIEF HISTORY OF THE NCAA..................................23
B. THE CREATION OF AMATEURISM.................................29
C. THE CHANGING TIDE.................................................. 31

V. THE EMERGENCE OF COLLEGIATE NAME, IMAGE, AND LIKENESS RIGHTS..............................................................32

A. STATE LAWS...............................................................33
B. THE NCAA'S ANNOUNCEMENT....................................36
C. SCHOOL AND CONFERENCE POLICIES......................... 37

VI. LEGAL AND STRATEGIC RISKS FOR THE NCAA AND CONFERENCES.................................................................... 39

A. ANTITRUST CHALLENGES TO NIL RULES.....................40

1. Antitrust Challenges Against the NCAA Based on Current NIL Rules.............................................41
2. Antitrust Challenges Against Athletic Conferences Based on Current NIL Rules ......... 43

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3. Antitrust Challenges Against Athletic Conferences Based on Past NIL Rules...............44

B. COLLECTIVE BARGAINING AND PACKAGING RIGHTS......................................................................46
C. STOPPING ILLEGITIMATE ARRANGEMENTS.................49

VII. LEGAL AND STRATEGIC RISKS FOR SCHOOLS....................50

A. PRIVACY RISKS........................................................... 51
B. INTELLECTUAL PROPERTY.......................................... 53
C. DUE PROCESS............................................................. 55
D. FREE SPEECH RISKS ................................................... 57
E. UNAUTHORIZED PRACTICE OF LAW ............................. 59
F. TITLE IX ..................................................................... 60

VIII. LEGAL AND STRATEGIC RISKS FOR ATHLETES ................. 63

A. FAILING TO FOLLOW SCHOOL POLICIES ...................... 63
B. BAD CONTRACTS ........................................................ 66
C. RISKING ELIGIBILITY..................................................68
D. USING SCHOOL MARKS............................................... 70
E. IMMIGRATION LAW..................................................... 70
F. TAXES........................................................................ 72

IX. OTHER CONSIDERATIONS ................................................... 73

A. AGENTS AND ADVISORS .............................................. 73
B. BOOSTERS .................................................................. 75

X. CONCLUSION ....................................................................... 76

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I. INTRODUCTION

In December of 2010, the Ohio State University football team became embroiled in a college football scandal.¹ The team had not cheated on the playing field, nor had they failed to attend classes.² Rather, their alleged wrongdoing was that the team's star quarterback, Terrelle Pryor, and four of his teammates had sold their championship rings and jerseys for money.³ These players also signed autographs at a tattoo parlor in exchange for free tattoos.⁴

Finding this conduct in violation of the National Collegiate Athletic Association's (NCAA) Principle of Amateurism,⁵ the NCAA suspended these players for five games each and required the Ohio State football team to vacate their victories for the season.⁶ The NCAA enforced these punishments even though Pryor and his teammates were from relatively low-income families,⁷ the economic value they obtained from selling merchandise and signing autographs was less than $40,000,⁸ and the value of the economic

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payments the players received was truly de minimis in light of the size of the college football industry.⁹

The Ohio State University football players' punishment is only one recent example of the NCAA's century-long quest to tie college sports to the dubious notion of amateurism, under which the NCAA has long disallowed college athletes from receiving any compensation beyond the cost of tuition, room, and board.¹⁰ Of course, the NCAA's restrictions on athlete compensation have always been hypocritical. As coaching salaries and television revenues have grown substantially in the past generation and many college sports executives today are earning multimillion dollar annual salaries, it has become increasingly difficult to ignore the disparities between the realities of undercompensated college athletes versus every other member of the college community who are free to license the rights to their names, images, and likenesses (NILs) to interested third parties.¹¹

Faced with growing pressure from state legislatures, the NCAA reluctantly surrendered its steadfast opposition to athletes monetizing their publicity rights on June 30, 2021.¹² In a short press release posted to the NCAA's website mere hours before the new state laws were to take effect, the NCAA ended more than a century of opposition to athletes being able to earn money off of their own NILs.¹³ The NCAA's interim policy is deferential to schools and

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individual conferences while at the same time maintains a limited number of association-wide mandates that continue to limit college athletes' licensing freedom.¹⁴

This Article, or perhaps more accurately stated, Short Treatise, provides a comprehensive overview of how changes to the NCAA's NIL policy will affect college athletes, universities, athletic conferences, and the NCAA itself. Part II of this Article provides an overview of the right of publicity. Part III discusses the special application of the right of publicity to sports. Part IV describes the NCAA's governance model. Part V analyzes the movements that led to NCAA athletes gaining the ability to monetize their rights of publicity. Part VI highlights risks for the NCAA and college athletic conferences that seek to regulate the commercial activities that athletes engage in. Part VII underscores the legal and strategic risks that schools face. Part VIII considers the risks that athletes face by seeking to monetize their image rights, and last, Part IX discusses ancillary areas of concern following the adoption of the NCAA's new policy on athletes' NIL rights.

II. A BRIEF OVERVIEW OF THE RIGHT OF PUBLICITY

The right of publicity is based on the concept that an individual should have control over the commercial use of their image or identity.¹⁵ Despite the simplicity of the idea that an individual should dictate how their own image is used commercially, scholars have historically disagreed over whether this right should be protected via torts (as was in many cases...