Name, Image, and Likeness: are its limits unconstitutional?

Name, Image, and Likeness, or better known as ‘NIL’, allows for the monetization of over four hundred and eighty thousand collegiate athletes across America. Thanks to a 2021 Supreme Court ruling, the NCAA ended its long-lasting ban on student athletes earning money from endorsement deals. It is fair to argue that specific college athletes bring in more media attention than most professional athletes. College athletes such as Paige Bueckers, a sophomore point guard out of the University of Connecticut, reached a brand deal with Stock-X with an incentive upwards of a million dollars. Better yet, Caleb Williams, the star of NIL, recently signed endorsement deals with Beats by Dre and Hawkins Way Capital which brought the star QB an estimated three million dollars: a lot of capital for a twenty-year-old.

Bueckers and Williams aren’t the only athletes thanking their lucky stars that the 2021 ruling happened. Although most student athletes won’t be lucky enough to strike deals such as Stock-X or Beats by Dre, most are enjoying deals that offer free food, free clothing, and free publicity. But hold your horses…that doesn’t mean that anything goes.

The NCAA’s new endorsement policy, NIL, pushes its authority to universities and states to make most of the final decisions. In fact, many states and universities have established their own policies regarding certain deals student athletes can enter into and more importantly which deals student athletes can’t enter into. Seems like a restriction on speech. Up to today, it is recorded that at least 92 universities have created rules governing what kinds of deals athletes can enter into. And 25 states have passed laws or issued executive orders that affect all public and private schools under their jurisdiction.  

The 2021 Kentucky executive order, the first kind of change made to the supreme court order has allowed for athletes to get paid for likeness deals in Kentucky, unless the university determines it “is in conflict with an existing contract of endorsement, promotional or other activity entered by a postsecondary educational institution”. But what exactly does this mean?

Since the University of Kentucky’s athletic programs are sponsored by Nike, the new codification would prevent a student athlete at the university to sign an endorsement deal with rivals such as Adidas or Under Armour. A West Virginia university policy illustrated the second restriction to name, image, and likeness. The schools’ guidelines, released on July 1st, 2021, the same date as the Supreme Court ruling, forbids athletes from entering into brand deals that are associated with gambling, alcohol, adult entertainment, and banned substances.

Although in some instances the guidelines placed by universities seem beneficial, others seem to be unfair and possibly unjust. Deciding what a player wears and does with brands in his or her offseason seems controversial. Not allowing a player to make money off of brands that may seem like a competitor to your initial brand contracts shouldn’t be the college athlete’s fault. However, as NIL is a brand new phenomenon, only time will tell as to how the rest of the states and their universities decide on the rules of name, image, and likeness.  

If you are interested in learning more about name, image, and likeness, and its complex governance please read the article linked here.