College Athletes and Image Rights

Summary

College athletes’ right to control their own name, image, and likeness (NIL) has long been contested. In the earliest days of college athletics in the 19th century, athletes could endorse what they wanted and profit from their image as they chose, largely because athletes themselves controlled all aspects of college sports. They made their own rules, scheduled games, hired coaches, and made their own endorsement deals. Only in the early 20th century, when the organization that eventually became the National Collegiate Athletic Association (NCAA) arose and took control away from the athletes, did the players lose their right to their NIL. Amateurism, meaning the athletes were not compensated in any way, was foundational to the NCAA. As NIL rules for college athletes became more restrictive, the law was changing as well. In 1890 the legal right of privacy was imagined in a law review, and throughout the 20th century, the idea that people could control and profit from their image evolved to become part of American law. In the 1930s, however, court decisions prevented athletes from managing their NIL because they were deemed to be public figures who had transferred their NIL rights to their colleges and leagues. In the 1970s, the courts shifted their perspective, concluding that athletes had NIL rights despite being public figures. College athletes, however, were still limited because the NCAA, which was largely exempted from antitrust law, insisted the athletes be amateurs. Antitrust law prohibits organizations from acting as monopolies and from setting up anti-competitive structures that limit the market. The NCAA had successfully argued that its regulations existed to create the unique product of college sports and to promote competition and fairness within the members, the participating schools and colleges, and thus did not violate antitrust laws. As a result, athletes like Jeremy Bloom, who had previously profited from his image as a professional skier, were unable to continue those endorsements while playing a different college sport. College sports in the 20th century generated ever-increasing revenues for the schools, the conferences, the NCAA, and everyone (coaches, athletic directors, and such) except for the athletes. The huge profits made it harder for the courts to continue to justify protecting the NCAA from antitrust laws. In the first quarter of the 21st century, the courts reduced the NCAA’s power and affirmed that the NCAA was not exempt from antitrust law. This restored college athletes’ rights of publicity and NIL opportunities, the same rights that professional athletes and ordinary individuals held. After about 100 years, the athletes regained the NIL rights that they had at the beginning. The future of college sports and NIL, though, is murky given various legislative efforts to shift power back to the NCAA and conferences.