Drafted by:
Richard T. Karcher, J.D., Eastern Michigan University
If Congress wants to give all college athletes the ability to be compensated for third party commercial use of their name, image, and likeness (NIL), the appropriate way is to enact a federal right of publicity statute, based on the state law framework, that gives them (1) the equivalent publicity rights of professional athletes and (2) a viable, enforceable remedy for an infringement or interference.
A. Publicity rights of professional athletes.
Professional athletes have a recognizable property right in their NILs that may be licensed or endorsed for third party use, i.e., use by parties other than their teams and leagues/associations. State right of publicity laws protect their rights against third party usage without permission (unless the use is protected by the First Amendment); whereas, their rights in relation to team and league/association use of NILs in broadcasts, appearances, promotions, etc., are protected by contract and employment/labor law, not state right of publicity law. In the context of broadcasts, state right of publicity claims are also preempted by copyright law and, because they are employees of the teams, the “work made for hire” doctrine precludes them from asserting an ownership interest in the intellectual property rights to the broadcasts.[1] Therefore, federal legislation seeking to put NIL rights of college athletes on par with professional athletes would not give them a property right vis-à-vis universities, conferences and the NCAA, but it also would not limit or preempt the enforcement of their rights against these entities based on alternative legal theories, e.g., labor and employment, unjust enrichment, antitrust, etc.
B. Enforcement.
Legislation must be crafted to give college athletes a viable remedy if there is (1) an infringement of their NIL rights by third parties or (2) an interference with their right to license NILs to third parties by universities, conferences or the NCAA. In order to do that, Congress must fully understand the problems that confront college athletes in the enforcement of their legal rights, in particular against universities and the NCAA.
1. The NCAA’s “institutional control” principle and “reinstatement process.”
The NCAA does not initially suspend athletes nor take away their grants-in-aid (athletic scholarships). The NCAA’s “institutional control” principle provides that it is the obligation of member institutions to immediately withhold an athlete from competition if the institution determines that the athlete is ineligible under NCAA bylaws. After the institution makes such a determination, the institution may immediately appeal to the Committee on Student-Athlete Reinstatement for “restoration” of the athlete’s eligibility. The committee then decides the number of games or events the athlete is ineligible and it does not affect the athlete’s grant-in-aid. The committee’s decision is “final, binding and conclusive and shall not be subject to further review by any other authority.”
The NCAA’s process for resolving eligibility disputes lacks independence and impartiality. The process requires the institution to determine that its athlete is ineligible under NCAA rules, and then gives it the right to appeal its own determination of ineligibility. The process also requires a reviewing committee made up of members selected by the NCAA to defer to the institution’s original findings of fact and determination of ineligibility. This combination creates a procedurally flawed process for issuing final and binding rulings concerning the eligibility of college athletes, who generally lack the financial resources to challenge their universities and the NCAA in court. Moreover, if an athlete challenges an ineligibility determination and successfully obtains a court order (an injunction) in his or her favor, and the institution allows the athlete to compete in compliance with the order, the NCAA’s “restitution rule” provides that the NCAA can impose numerous sanctions on the institution if the court’s order is vacated, stayed or reversed on appeal. However, no sanctions are imposed as long as the institution complies with its obligation of institutional control and the decision of the reinstatement committee.
2. Final and binding independent arbitration.
The NCAA’s process pits institutions against the NCAA and gives institutions every incentive to comply with the NCAA over the law, and it fails to provide a fundamentally fair process as contemplated by the Federal Arbitration Act.[2] In order to effectively legislate third party use of college athlete NIL rights, the law cannot allow athletic eligibility disputes between athletes and universities/NCAA to be resolved by a procedurally flawed process. And the court system is simply not an appropriate forum to resolve these disputes. Therefore, if an athlete has reason to believe his or her NIL rights granted by law are being interfered with by the institution, conference or NCAA, the athlete’s eligibility determination must be made by final and binding independent arbitration in lieu of the NCAA’s reinstatement process (see, e.g., the Ted Stevens Olympic and Amateur Sports Act, which mandates independent and impartial arbitration of disputes between Olympic athletes and national governing bodies).
C. Model Statute.
15 USC Ch. __: COLLEGE ATHLETES RIGHT OF PUBLICITY
From Title 15—COMMERCE AND TRADE
Short Title
This Act may be cited as the “College Athletes Right of Publicity Act.”
§1001. Regulation of Name, Image and Likeness Use
(a) Grant of publicity rights. Every college athlete has an inherent property right in their name, image and likeness that he or she may individually or in a group context, with or without the assistance of retained counsel or representatives, freely sell, transfer and license for commercial use and purposes in any medium in any manner, including—
(1) appearances and promotions;
(2) product or service advertisements, endorsements, and sponsorships; and
(3) use in any primarily commercial item (e.g., video games, jerseys, t-shirts, calendars, posters, serving trays, playing cards, etc.).
(b) Exceptions. Paragraph (a) shall not apply to use of a college athlete’s name, image or likeness in the context of—
(1) news reporting and commentary;
(2) simultaneously recorded or reproduced broadcasts of games and sporting events;
(3) entertainment in the form of films, musical compositions, radio and television programs, and literary and theatrical works;
(4) artistic and primarily expressive works; or
(5) advertising that is incidental to such uses.
(c) Infringement. No person or entity (other than a postsecondary educational institution, intercollegiate athletics conference, or national collegiate athletics association) shall use a name, image or likeness for any purpose described in paragraph (a) without the college athlete’s express written permission.
(d) Interference. No postsecondary educational institution, intercollegiate athletics conference, or national collegiate athletics association shall interfere with a college athlete’s publicity rights granted in paragraph (a). Such interference includes—
(1) imposing or threatening to impose any suspension, declaration of ineligibility, or withholding from competition; and
(2) demanding or requesting any person or entity not to—
(A) use the name, image or likeness of a college athlete who has granted, or may be willing to grant, permission for such use; or
(B) do an appearance or promotion with a college athlete.
§1002. Enforcement
(a) Civil actions by states. In any case in which the attorney general of a State has reason to believe that the publicity rights of a college athlete in that State have been or are threatened or adversely affected by a practice that violates section 1001(c) of this chapter, the State may bring a civil action on behalf of such college athlete in a district court of the United States of appropriate jurisdiction to—
(2) obtain damages, restitution, or other compensation on behalf of the college athlete.
(b) Civil actions by college athletes. A college athlete has a right of action against any person or entity in violation of section 1001(c) of this chapter for recovery of damages and/or equitable relief. A college athlete who prevails in a civil action shall be entitled to reasonable attorney’s fees.
(c) Impartial and independent arbitration.
(1) Arbitration right of college athletes. In any case in which a college athlete has reason to believe that his or her publicity rights are being interfered with in violation of section 1001(d) of this chapter, the college athlete may have the dispute resolved exclusively and immediately through an arbitration process that adopts the American Arbitration Association’s (AAA) Commercial Arbitration Rules and Mediation Procedures.
(2) Appointment of arbitrator. The arbitrator shall be appointed pursuant to the AAA Commercial Arbitration Rules and Mediation Procedures’ R-12 (Appointment from National Roster) method or, if necessary, R-38 (Emergency Measures of Protection) method.
(3) Enforceability. The arbitrator’s ruling shall be final and binding on all parties, and judgment on the award rendered by the arbitrator may be entered in any court having appropriate jurisdiction.
(4) Fees and expenses. The college athlete’s institution shall be responsible for the college athlete’s reasonable attorney’s fees, the AAA administrative fees, any arbitrator compensation and expenses, reporting service fees, and any post-award charges that may be incurred to enforce the award.
§1003. Limitation
Nothing in this chapter shall be construed to prohibit an individual from seeking any remedies available under existing Federal or State law or equity.
[1]For a discussion of professional teams’ property right in game broadcasts, claims of professional athletes, and statutory defenses under the Copyright Act, see Richard T. Karcher, Broadcast Rights, Unjust Enrichment, and the Student-Athlete, 34 CARDOZO L. REV. 107 (2012), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2156159.
[2]For further explanation, see Stephen F. Ross, Richard T. Karcher, & S. Baker Kensinger, Judicial Review of NCAA Eligibility Decisions: Evaluation of the Restitution Rule and a Call for Arbitration, 40 J.C. & U.L. 79 (2014), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2397186.