Bloomberg Law
Dec. 20, 2019, 9:00 AM

INSIGHT: Student-Athletes on Cusp of Compensation With ‘Right of Publicity’ Changes

Evan Gourvitz
Evan Gourvitz
Ropes & Gray LLP

Under current National Collegiate Athletic Association rules, student-athletes are ineligible to compete if they accept any payment for the use of their names or images to advertise any products or services. Reforms led by the state of California, and now supported by the NCAA itself, may dramatically alter this landscape.

College athletes historically have been unable to benefit financially from their image and likeness, even while the colleges and universities exploit their fame.

The right to control the commercial exploitation of one’s own name and identity is referred to as the “right of publicity.” Although, as a product of state law, this right varies from state to state, as a general matter it prohibits others from using an individual’s name or likeness in commercial advertising without permission, and allows for injunctive relief and damages for violations.

This allows professional athletes to seek compensation for authorizing the use of their names and likenesses by third parties for commercial purposes—for example, in an advertisement, a video game, or even on social media.

The Student-Athlete Bind

However, student-athletes—that is, athletes at U.S. colleges and universities governed by NCAA rules—are NCAA bound by Bylaw, “Advertisements and Promotions After Becoming a Student-Athlete,” which states in relevant part that:

After becoming a student-athlete, an individual shall not be eligible for participation in intercollegiate athletics if the individual:

(a) Accepts any remuneration for or permits the use of his or her name or picture to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind; or

(b) Receives remuneration for endorsing a commercial product or service through the individual’s use of such product or service.

As a result, student-athletes have been caught in a bind: while they may help earn billions of dollars for their schools and the college sports industry, they are unable to financially benefit from their performances.

California Leads the Change

In an attempt to remedy this imbalance, on Sept. 30, California Gov. Gavin Newsom (D) signed the “Fair Pay to Play Act” into law, which as of 2023 will allow athletes at California’s public universities and colleges to earn money from sponsorships and endorsements without losing their eligibility to participate in college athletics.

More particularly, it provides, among other things, that “[a] postsecondary educational institution shall not uphold any rule, requirement, standard, or other limitation that prevents a student of that institution participating in intercollegiate athletics from earning compensation as a result of the use of the student’s name, image, or likeness,” and that “[e]arning compensation from the use of a student’s name, image, or likeness shall not affect the student’s scholarship eligibility.”

Related provisions prohibit “[a]n athletic association, conference, or other group or organization with authority over intercollegiate athletics, including, but not limited to, the National Collegiate Athletic Association,” from “prevent[ing] a student of a postsecondary educational institution participating in intercollegiate athletics from earning compensation as a result of the use of the student’s name, image, or likeness,” or “prevent[ing] a postsecondary educational institution from participating in intercollegiate athletics as a result of the compensation of a student athlete for the use of the student’s name, image, or likeness.”

Other states have expressed an interest in following California’s lead. Legislators in New York, Florida, Illinois, and South Carolina, for example, proposed similar laws, and both Republicans and Democrats have supported comparable legislation at the national level.

Likely as a result of these legislative changes, the NCAA reversed its prior opposition, and in less than a month from the passage of the California law, on Oct. 29, the NCAA Board of Governors unanimously voted to permit student-athletes to “benefit from the use of their name, image and likeness in a manner consistent with the collegiate model,” and instructed each of its three divisions to consider updates to relevant bylaws and policies to be implemented “no later than January 2021.”

Compensation Around the Corner

So what does all of this mean for the right of publicity? Essentially, that if and when these reforms go into effect, college student-athletes will—or, at least theoretically, should—be able to exploit their rights of publicity in the same manner as professional athletes, and to seek compensation for the use of their names and images for commercial purposes.

This is provided, of course, that they do not otherwise sign away some or all of those rights without compensation as part of a separate agreement—for example, by assigning that right to their own team or university, particularly when engaged in official team activities.

The case law already has acknowledged the benefits these reforms would be likely to provide. In O‘Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015), a former college athlete brought a right of publicity claim for the unauthorized, uncompensated inclusion of his avatar in a college basketball videogame.

The Ninth Circuit observed that the district court had found that “if the NCAA’s . . . rules [prohibiting compensation] did not exist, member schools would compete to offer recruits compensation for their [names, images, and likenesses],” and that “if permitted to do so, video game makers . . . would negotiate with college athletes for the right to use their [names, images, and likenesses] in video games because these companies want to make games that are as realistic as possible.”

Indeed—and at least in part because of the complexity of the right of publicity and other legal issues involved—there hasn’t been a college football video game since 2013, when EA Sports released NCAA Football 14. But once these reforms go through, there very well may be a duly-authorized and licensed NCAA Football 2021, and the NCAA, the college sports industry, the players, their schools, and video gamers all may stand to benefit.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Evan Gourvitz is counsel in Ropes & Gray’s intellectual property litigation practice in New York. He has successfully litigated intellectual property cases, and counseled clients on intellectual property protection and disputes, for more than 20 years as both outside and in-house counsel.