Until a few years ago, the NCAA has historically prohibited college athletes from earning compensation for their Name, Image, and Likeness (NIL). [1] Name, Image, and Likeness is a form of the right to publicity which grants the exclusive right to an individual to license their identity for commercial purposes. [2]  In 2021, the game completely changed when the NCAA suspended its prohibition, allowing college athletes to monetarily profit from their reputation. [3]  The NCAA provided minimal guidance for how schools and states should proceed in shaping their policies, resulting in a lack of uniformity among state NIL policy. [4]  Additionally, there is no current federal legislation although dozens of policies have been introduced. [5]

NIL is an ever-changing concept that has been deemed the “Wild West” due to its lack of regulation. [6] In these dynamic conditions, notable recent news includes:

• EA  Sports is releasing its popular “College Football 25” video game in Summer 2024 – the first release since 2013. EA offered $600 and a free copy of the game to any player who agreed to have their likeness featured which gives EA the ability to use the players’ names in the game. More than 10,000 of the 1,390 FBS players have agreed. [7]

• The NCAA halted its investigations into third parties creating NIL deals with collegiate Division I athletes after a federal judge granted a preliminary injunction in a lawsuit filed by the attorneys general of Tennessee and Virginia. The lawsuit is an antitrust claim challenging the NCAA’s rules against recruiting inducements. [8]

• An in-season college basketball invitational tournament offering $2 million in NIL payouts is in the works for fall of 2024. Every team will be guaranteed at least $1 million in NIL for participating, and the winning team will be eligible to earn another $1 million. The cash out distribution is left to the will of the program, but it must be divided among the current team. [9]

• Texas Senator Ted Cruz invited former University of Alabama head football coach Nick Saban to speak at a roundtable on March 12 focused on the need for Congress to pass NIL legislation. Cruz is a strong supporter of Congress passing NIL legislation and introduced a bill last summer that would preempt state law and bar student athletes from attaining employee status. [10]

To discover journal articles on recent developments in sports and the law, go to the Sol Blatt, Jr. Law Library Database page and access HeinOnline to view the databases titled Business and Legal Aspects of Sports and Entertainment (BLASÉ) and Professional Sports and the Law.

References:

[1] Nat’l Collegiate Athletic Ass’n., 2022-2023 Division I Manual § 12.5.2.1(2022), available at https://www.ncaapublications.com/productdownloads/D123.pdf.

[2] Heath Hamacher, NIL Law Changes Face of College Athletics, SC Lawyers Weekly, Sept. 2023 at 4, 5.

[3] Michelle Brutlag Hosick, NCAA Adopts Interim Name, Image and Likeness Policy, NCAA (June 30, 2021, 4:20 PM), https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-likeness-policy.aspx.

[4] Laura Spitalniak, House Lawmakers Weigh Bipartisan Proposal to Establish National NIL Rules, Higher Ed Dive (Jan. 19, 2024), https://www.highereddive.com/news/house-lawmakers-weigh-bipartisan-proposal-to-establish-national-nil-rules/704968/ (“Over 30 states have passed laws that permit student athletes to profit from NIL deals. But those rules can differ dramatically.”).

[5] Kristi Dosh, 4 New Federal NIL Bills Have Been Introduced in Congress, Forbes (July 29, 2023, 9:31 am), https://www.forbes.com/sites/kristidosh/2023/07/29/4-new-federal-nil-bills-that-have-been-introduced-in-congress/?sh=6f2957234d46.

[6[ Lexi Lonas, Lawmakers Take Up NIL Deals Amid College Sports ‘Wild West,‘ The Hill (Jan. 18, 2024) (“’At the same time, the sudden transition to NIL has enabled a wild west environment where pay-for-play is rampant.’”).

[7] Steve Henson, $600, Free Video Game: How EA Sports Got Players to Opt in to ‘College Football 25’, LA Times (Mar. 8, 2024, 1:27PM), https://www.latimes.com/sports/story/2024-03-07/electronic-arts-sports-college-football-25-video-game-players-nil.

[8] NCAA Pausing NIL Investigations in Wake of Tennessee Case, ESPN, (Mar. 1, 2024, 5:04PM), https://www.espn.com/college-football/story/_/id/39633142/ncaa-pausing-nil-investigations-wake-tennessee-case.

[9] In-season College Basketball Invitational Tournament to Offer $2 Million NIL Payouts, Fox Sports (Mar. 8, 2024, 8:16 PM) https://www.foxsports.com/stories/college-basketball/in-season-college-basketball-invitational-tournament-to-offer-2-million-nil-payouts.

[10] Pete Nakos, Sen. Ted Cruz to Hold NIL Roundtable, Nick Saban, Cavinder Twins Among Guests, On3, (Mar. 8, 2024) https://www.on3.com/nil/news/nick-saban-cavinder-twins-ted-cruz-senator-capitol-hill-nil-ncaa-roundtable/.

Lindsay Twedt

Charleston School of Law
Juris Doctor Candidate, December 2024
Staff Editor, Charleston Law Review
Research Fellow, Sol Blatt Jr. Law Library