What is Name Image Likeness (NIL)?
Historically, student athletes were prohibited from profiting from their use of name, image and likeness (NIL) in the participation of National Collegiate Athletic Association (NCAA) – sanctioned competition. What differentiated professional athletes from collegiate athletes was that distinction of “amateurism” created and implemented by the NCAA, which has over the years faced several legal challenges involving unreasonable restraint of trade and antitrust law violations. Recently, the US Supreme Court in Sherman Act. NCAA v. Alston upheld a district court decision that the NCAA rules limiting student athletes from education related compensation violated the Sherman Act, which provided the legal channel permitting NCAA student-athletes to “get paid” for the use of their individual name, image and likeness. Since the Alston decision, the NCAA has adopted a NIL Policy allowing student-athletes the ability to take advantage of their name, image and likeness.
Following the Alston decision, many states enacted legislation for student-athletes to profit from their NIL at universities across the United States and for the most part legislation is fairly uniform between states. Here are some notable states that stand out:
- California: Prohibits a college or university from imposing any rules or regulations that prevent a student from earning compensation as a result of the use of their NILand establishes that such compensation shall not count against the student-athlete’s financial eligibility. Prohibits student-athletes from entering into NILagreements that conflict with their institution’s team agreements.
- Florida: Permits student-athletes to engage with agents but those agents must hold valid licenses. Defines that a postsecondary educational institution or an employee of such institution, including an athletic coach, is not liable for any damages to a student-athlete’s ability to earn compensation for the use of their NIL resulting from decisions and actions routinely taken in the course of intercollegiate athletics.
- Georgia: Provides institutions in Georgia the option of requiring their student-athletes to share up to 75% of their NIL compensation with pooled funds that will be held in escrow and distributed to student-athletes postgraduation on a pro rata basis. Requires institutions in Georgia to provide a minimum of five hours of financial literacy and life skills.
Emerging Trends and Key Issues in NIL Deals
According to Opendorse, one of the leading athlete marketplace companies that provides various technology services to the NIL athletes, the NIL market is expected to surpass 2.5 billion in 2025. This is not surprising given the fact that there has been a concerted effort for athletes and brands to aggressively pursue traditional as well as untapped NIL revenue streams. By leaning in on Gen Z insights, athletes can score big by working with brands to cultivate fan based audience experiences and creating subscription based content. In fact, some colleges have even hired brand specialists and media consultants to help collaborate with athletes to identify and secure these particular brand opportunities. And because media has pushed this concept that content is king, streaming original content and live sports is on the rise and it is also being leveraged to address the disparity with regard to womens’ NIL deals as opposed to mens’ NIL Deals.
In December 2024, Whoopi Goldberg announced that she would start the All Women’s Sports Network (AWSN) along with George Chung, of Jungo TV. The network will stream into more than 100 million homes that is grabbing the attention of the top brands. Brands understand that representation in media of womens’ sports is on fire as evidenced by the WNBA’s 2024 season historic viewership. With new ventures like these, NCAA womens’ athletic representation in media will greatly help improve visibility for women in sports and attracting large brand advertising dollars. With this upward trend, brands will have no choice but continue to create NIL deals for women that will not only raise women athlete profiles, but their own brand as well.
Legal Insights and Case Law Updates in NIL
As the adage goes, “while the cat is away, the mice will play”, so will the state legislatures in the absence of any federal legislation. As of late, the revenue sharing model has become one of the hottest topics of discussion in the NIL landscape. Most notably, Georgia has been one of the most progressive on the legalization of NIL deals and how they should operate in the state. In September of 2024, Georgia’s Governor Brian Kemp issued an executive order providing colleges with authority to directly issue compensation – as opposed to going through a collective – to student athletes for their name, image and likeness. Georgia was the second state after Virginia to permit this revenue sharing model with regard to NIL.
Unless and until there is any decisive action on passing any substantive federal legislation, we will likely see additional alternative compensation models and NIL revenue streams spring up across the states.
The challenge that athletes will continuously face is that since 2021, when NIL first became legal, the rules that have been implemented are essentially a disjointed set of regulations that vary by state and subsequently every individual school.
The lack of federal legislation also affects international students as well. Currently, there are more than 25,000 international student athletes who are studying in the United States under the F-1 Visa and there are strict rules placed on this student-visa, namely the ability to work or earn money by using their name, image, and likeness. The only viable work-around for international students is if the students were to pursue NIL opportunities in their home country. However, those opportunities are substantially more limited and definitely aren’t as beneficial as the opportunities of the US college students.
Conclusion
The evolving landscape of Name, Image, and Likeness (NIL) rights is reshaping college athletics, creating unprecedented opportunities and challenges for student-athletes, schools, and brands alike. As states continue to introduce legislation and new revenue models emerge, navigating the complexities of NIL requires expert guidance.
At Omnus Law, our sports and entertainment attorneys, Karlen Padayachee and Marcus Sandifer are well versed in the nuances of NIL legislation, contracts, and compliance. Whether you’re a student-athlete seeking to maximize your opportunities, a school ensuring regulatory adherence, or a brand exploring NIL partnerships, we’re here to provide tailored legal solutions that align with your goals. Contact Omnus Law today to learn how we can help you navigate the NIL landscape with confidence.