NIL refers to an amateur athlete’s ability to profit from their own name, image, and likeness. NIL examples include endorsements, autograph signings, and the relaunch of the EA Sports College Football 25 video game.

College athletes were prohibited from profiting from their likenesses since the creation of the National Collegiate Athletics Association (NCAA).¹ However, that changed on July 1, 2021, in the aftermath of O’Bannon v. NCAA.² In O’Bannon, the NCAA’s rules on amateurism were deemed an unreasonable restraint of trade that violated the Sherman Act, and member institutions must be allowed to offer full cost-of-attendance scholarships to athletes.³

NIL law is a combination of contract, trademark, and tax law.⁴ Athletes sign contracts with third parties to make NIL deals. Trademark law impacts the athlete’s ability to create their own brand or use their university’s marks or colors. Under federal tax law, money from student NIL deals is taxable income with athletes considered independent contractors.⁵ NIL collectives are organizations, typically run by a board of directors, that manage donations from fans, alumni, and businesses. Some collectives take donations directly to pay athletes for endorsements or attend promotional events, while others match athletes to businesses to generate NIL deals.⁶ Attorneys representing clients wishing to donate to NIL collectives should be well-versed in current gift tax law.

RESEARCHING NIL LAW: PRIMARY AUTHORITY

State and federal NIL-related case dockets and opinions can be found using legal research products like Bloomberg Law, LexisNexis, and Westlaw. Other sources for opinions include Fastcase (accessible via the SBM member portal), Google Scholar (scholar.google.com), or the Cornell Law School Legal Information Institute website (law.cornell.edu).

State laws on NIL for athletes are a mix of regulatory and statutory laws, depending on the state. As of June 2024, 34 states have enacted at least one regulation and/or statute on NIL law for high school and college athletes.⁷ Many states and Congress currently have pending NIL-related bills.⁸ One source for NIL laws are annotated state and federal statutes in LexisNexis and Westlaw with links to related bills. However, the best resources for pending legislation are official websites like the Michigan Legislature (legislature.mi.gov) or U.S. Congress (congress.gov) for statutes, bills, and related documents. Both Govinfo.gov and the Cornell Legal Information Institute website offer free resources for legislative research.

Fifty-state survey products in Bloomberg Law, Lexis, Westlaw, and HeinOnline allow researchers to compare statutes from multiple states. However, NIL law in some states is regulatory law.⁹ Best resources include official regulatory agency websites in those states; regulations databases in Fastcase, Lexis, and Westlaw; and the Cornell Legal Information Institute sites for states’ current regulations and proposed rule changes. Westlaw also has a 50-state surveys tool for comparing regulations across multiple jurisdictions.

SECONDARY RESOURCES

Legal research databases have many resources that cover aspects of NIL law. For example, a search of “name image and likeness” in Bloomberg Law, LexisNexis, or Westlaw returns everything from content from dockets to news to practical resources for contract drafting clauses. However, treatise coverage is not particularly strong there, nor are there authoritative stand-alone treatises yet on NIL law.

There are many excellent websites that provide NIL news. The Athletic is the sports arm of the New York Times, covering college and professional sports and sports business. Sportico and the Sports Business Journal are excellent resources for all sports with a heavy focus on business and law. News about NIL issues is covered in local and national news sources including the Detroit Free Press, Detroit News, and the Wall Street Journal. All are in the LexisNexis news and legal news sections along with thousands of newspapers and magazines. Bloomberg Law has excellent news coverage through its Bloomberg News product and within practice groups, such as trademark and taxation. Fastcase has many legal blogs; search “name image likeness” and narrow by checking the “Blogs” box under “All Primary & Secondary” documents. Social media posts by attorneys and firms with sports law practices can be found by searching LinkedIn. Lastly, podcasts are another way to keep up with NIL updates, particularly Yahoo Sports’ twice-weekly College Football Enquirer.

There are many academic articles on NIL law and related issues. Google Scholar is good for searches to find citations; use terms like “name image likeness” football, for example. With citations, you can get articles through academic databases like HeinOnline or JSTOR, law review and journal websites, or Fastcase, LexisNexis, and Westlaw. Academic articles are sometimes available for free through university digital commons websites or by requesting them directly from an author.

Another good source of information on NIL law and rules are official NCAA and university athletic department websites. The NCAA has an excellent site that includes policies, updates, and archived resources.¹⁰ Michigan State University’s athletics department has a NIL policy page,¹¹ as does the University of Michigan athletics compliance services office.¹² Finally, another helpful resource are academic library research guides on sports law.¹³

CONCLUSION

There are many concerns about NIL, including it leading to greater professionalization of amateur sports. In June 2024, the NCAA approved advertisements on football fields for regular-season games.¹⁴ Although many longstanding traditions in college athletics are starting to disappear, not all are worth keeping. College athletes are finally being more fairly compensated for the value they provide to their programs. Only time will tell what name, image, and likeness’ impact will be on collegiate sports — and the law.