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Name Image and Likeness rights – The impact on budding and rising professional athletes in the NCAA

Written by Aakash Thiagarajamurthy*





Introduction


In sports today, we see many elite-level athletes sign significant endorsement deals with brands. Compared to about 20 years ago, today, athletes are launching partnerships with multiple brands and companies, not just Sports brands or shoe brands. Their agents and financial advisers advise athletes to diversify their portfolios to boost their financial stability and solidify their monetary returns after their playing career comes to a halt. This is all possible because the athletes possess Name Image and Likeness Rights. However, in the USA's college-level/amateur level sports, we saw that the governing body or the NCAA (National Collegiate Athletic Association) placed a strict ban on college-level athletes leveraging their Name, Image and Likeness to sign deals that are monetarily beneficial to them. However, this rule has now been lifted. This article will discuss how lifting this ban will affect upcoming athletes who want to realize their dream of becoming professional athletes.

The Existing Rule


Every person has a name and has a personality of their own. However, when you enter the space of being a professional athlete, there is an automatic value attached to your name, image and likeness. Every athlete possesses that value to their name and image. The NCAA had placed a rule that college athletes cannot be paid any money for their services as athletes to the college/university. Neither can they earn money from any external deal/partnership using their name and image. This was initially imposed to preserve the amateurism rules as the athletes were not considered professional yet. Article 12.1.2 of the NCAA 2021-2022 Division I Manual [1] states that an individual will no longer be considered an amateur and will be ineligible to compete at the college level for a particular sport if:

  1. He gets paid for his skill in that sport.

  2. He agrees to a promise of pay even if he receives it after college.

  3. Commits to play professionally.

  4. He declares his entry into a professional draft.

  5. Signs an agent representation agreement.

In addition to this, Article 12.5.2.1 states that a student-athlete will be ineligible to take part in NCAA sports events if he receives money from commercial advertisement or endorsement [2]; and Article 12.5.1.1 states that the pictures, appearance and name of a student-athlete can be used only by the institution which he attends for charitable activities [3].

The change introduced

As a result of recent case law challenging the NCAA rules [4], On the 30th of June 2021, the NCAA governing bodies adopted a uniform interim policy that suspended the NCAA NIL rules for all the incoming and current student-athletes of all divisions, where they would now have the chance to make some monetary gains from leveraging their Name, Image, and likeness. However, some states in the United States prohibit college and High School athletes from leveraging their NIL. Hence keeping this in mind, the NCAA released the guidelines that (i) the athletes can engage in NIL activity which are in accordance with the respective state’s law where their institution is located; (ii) if the college of the student-athlete is in a state without a NIL law then they are allowed to engage in NIL activity without breaching the NCAA rules; (iii) the college athletes can employ a professional agency for NIL activities. [5]

This change has been very welcome among the athlete community as aspiring professional athletes now have the opportunity to enter into endorsement and sponsorship deals with upcoming brands, monetize their social media presences and ultimately increase their income and money-making prospects even before a professional team signs them. High School Basketball Sensation Mikey Williams, one of the top prospects in the upcoming 2023 NBA draft, has agreed to a deal with Excel Sports Management to handle his Name, Image and Likeness rights. [6] He went on to ink an endorsement deal with Puma even though he is still in High School. [7]

Conclusion


We, however, must acknowledge that this change will not affect the crème de la crème of college athletes who aspire to play in the NBA and NFL as their signing bonus and salaries can get to such high amounts that the money they make while in college might be negligible. The new NIL rule will benefit Olympic athletes and athletes who play sports that aren’t popular or commercial and would benefit female athletes who are sadly side-lined in American sport. This rule would enable female athletes to earn some extra money that previously they would not have been able to achieve. So this change isn’t going to have a tremendous impact on some athletes, but it does slightly affect other athletes.


*The author is a law scholar of Jindal Global Law School, India.



(The image used here is for representational purposes only)




References



[1] Art. 12.1.2, NCAA Division I Manual 2021-2022 https://web3.ncaa.org/lsdbi/reports/getReport/90008

[2] Art. 12.5.2.1, NCAA Division I Manual 2021-2022 https://web3.ncaa.org/lsdbi/reports/getReport/90008

[3] Art. 12.5.1.1, NCAA Division I Manual 2021-2022 https://web3.ncaa.org/lsdbi/reports/getReport/90008

[4] National Collegiate Athletic Association V. Alston Et Al. (06/21/2021) https://www.supremecourt.gov/opinions/20pdf/20-512_gfbh.pdf accessed 29 October 2021.

[5] Michelle Hosick, 'NCAA Adopts Interim Name, Image And Likeness Policy' (2021) https://www.ncaa.org/about/resources/media-center/news/ncaa-adopts-interim-name-image-and-likeness-policy accessed 21 September 2021.

[6] Tim Daniels, 'High School Basketball Star Mikey Williams Signs NIL Contract With Excel Sports' (Bleacher Report, 2021) https://bleacherreport.com/articles/10008365-high-school-basketball-star-mikey-williams-signs-nil-contract-with-excelsports#:~:text=High%20School%20Basketball%20Star%20Mikey%20Williams%20Signs%20NIL%20Contract%20with%20Excel%20Sports,-Tim%20Daniels%40%40&text=Mikey%20Williams%2C%20one%20of%20the,and%20likeness%20(NIL)%20rights. accessed 21 September 2021.

[7] Kim Bhasin, 'Puma Signs Deal With 17-Year-Old High School Basketball Phenom' (Bloomberg.com, 2021) https://www.bloomberg.com/news/articles/2021-10-28/puma-signs-deal-with-17-year-old-high-school-basketball-phenom accessed 29 October 2021.