Article
The future of name, image and likeness in higher education
May 26, 2021 · Authored by Katlyn Andrews, Kyra Castano
Name, image and likeness (NIL) are three elements that make up the legal concept known as “right of publicity.” The right of publicity, sometimes called “personality rights,” is an individual's right to control and profit from the commercial use of his/her name, image or likeness.
Examples of NIL-related activities
- Advertising or promoting a business
- Autographs or photographs
- Personal appearances
- Sales of merchandise with name, image or likeness
- Social media endorsements
- Representation in movies, television or video games
Why is NIL important in collegiate athletics?
In one word: amateurism
An amateur athlete is “someone who does not have a written or verbal agreement with an agent, has not profited above his/her actual and necessary expenses or gained a competitive advantage in his/her sport.” Allowing student athletes to profit from their name, image or likeness is a direct threat to amateurism, one of the major reasons the National Collegiate Athletic Association (NCAA) was created.
NCAA compliance and regulations
The NCAA stands by its amateurism model and does not permit student athletes to be paid for their athletic performance (e.g., accepting a cash prize for winning a race) and restricts a student athlete’s ability to profit from the use of their name, image and likeness. Restrictions vary between Division I and Divisions II/III colleges and universities. As it currently stands, Division I student athletes may not use their name, image or likeness to promote or endorse a commercial product or service, even if they are not paid to participate in the activity. In Divisions II and III, student athletes may use their name, image or likeness in promotional activities unrelated to athletics, including promoting or endorsing commercial products or services.
Expected changes to NCAA’s NIL rules
The NCAA, having recognized the need to modernize, is committed to creating more flexibility in NIL rules. However, in January 2021, it delayed votes on new legislation pending discussions with the U.S. Department of Justice around antitrust concerns.
