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Developments In Student Athletes' Publicity Rights
The rights of college student-athletes to receive compensation for the use of their "name, image and likeness" (NIL) are finally being addressed. As with most employment-related laws, the legal authority for protecting a college athlete's NIL rights can be traced to California. In 2014, former UCLA Basketball star Ed O'Bannon filed a class action in the U.S. District Court for the Northern District of California on behalf of college athletes alleging the National Collegiate Athletic Association (NCAA) and its colleges were violating antitrust laws by profiting off the NIL of college athletes without compensating the student-athletes for the unauthorized use.
Fast forward seven years and the issue is the subject of additional lawsuits, proposed federal legislation and the adoption by six states of NIL laws. In addition, the NCAA has expressed a willingness to evaluate the issue and consider changing its bylaws to authorize student-athletes' rights to pursue NIL endorsement opportunities. In 2021, guidance is expected from the U.S. Supreme Court, the federal government, various state governments, and the NCAA. A watershed moment in college sports is expected to result in decisions and actions by multiple forums that will drastically change the rights of student-athletes and a whole new world for college athletics.
The case before the Supreme Court, National Collegiate Athletic Association v. Alston, 20-512, is an appeal from Alston v. NCAA (In re NCAA Athletic Grant-In-Aid Cap Antitrust Litig, 958 F.3d 1239 (9th Cir. 2020). The Ninth Circuit affirmed a district court order enjoining the NCAA from enforcing rules that restrict the education-related benefits its member institutions may offer to Division I football and basketball student-athletes. The appeals court affirmed that the limits to above-cost of attendance compensation for student-athletes the NCAA presently imposes on member institutions is an unlawful restraint of trade under the Sherman Act.
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