Negotiating Name, Image and Likeness in Sports

While Name, Image and Likeness rights (also known as “NIL” rights) are not new forms of athlete compensation, these rights have gained a newfound appreciation due to recent college-level rule changes in the United States (the “U.S.”). The following provides a high-level overview of NIL rights and recent developments in the area.

What are NIL rights?

An athlete’s NIL for commercial purposes is protected under tort law in both Canada and the U.S.  

In Canada, the tort of “wrongful appropriation of personality” involves the “wrongful exploitation of the name and likeness of someone else for commercial purposes, such as when an athlete’s name or image is used to endorse a product without the athlete’s knowledge or consent.”[1] In the U.S., this tort is referred to as the “right of publicity,” which involves the “right of an individual…to control the commercial value and exploitation of [their] name and picture or likeness and to prevent others from unfairly appropriating this value for their commercial benefit.”[2]

NIL in Compensation Negotiation

NIL rights are a common issue in compensation negotiations. For example, athletes or unions may negotiate the ability for the sports organization to make money off of their athletes’ NIL. Negotiating an athlete’s NIL could allow an organization to use the athlete’s NIL with respect to autographs, social media posts, non-fungible tokens, merchandising, as well as other uses. Quite simply, an athlete’s NIL has a quantifiable value to sports organizations that may need to utilize the NIL to promote products or services.[3]

Recent Updates for Amateur Athletes

The ability for amateur athletes and colleges to profit from an athlete’s NIL depends on the rules of the governing college bodies. In the U.S., the National Collegiate Athletic Association (the “NCAA”) regulates student athletics and organizes student programming. To date, only one Canadian school is affiliated with the NCAA (Simon Fraser University). In Canada, USport governs college athletics.

Prior to July of 2021, the NCAA had rules which restricted student athletes from receiving payment to “advertise, recommend or promote directly the sale or use of a commercial product or service of any kind.”[4] However in the landmark decision NCAA v. Alston, the U.S. Supreme Court ruled that the NCAA’s compensation restrictions regarding education-related payments violated anti-trust legislation.[5] The concurring opinion of Justice Kavanaugh further suggested the NCAA’s restriction on non-education-related benefits should also be struck down.[6]

The NCAA subsequently amended its policy effective July 1, 2021, to allow certain student athletes to engage in NIL activities consistent with the state law where the school is located.[7] However, the policy continued to prohibit colleges from paying student athletes directly “beyond the cost of attendance.”[8]

The NCAA’s position with respect to NIL rights may soon change again as on December 5, 2023, the NCAA’s President announced a proposal allowing Division I colleges to pay student athletes directly for NIL deals.[9] If approved, athletes will be able to earn even more income through their NIL, without advancing to professional-level sport.

This is unlike USport, in which Canadian athletes are already able to sign sponsorship deals.[10]

Conclusion

This article provides a high-level overview of what NIL rights and recent trends for amateur athletes. Not only is there tremendous earning potential for both athletes and sports organizations with regard to NIL rights, but the earning potential of NIL raises questions as to how female athletes may leverage these rights to increase their own earning potential as pay disparities remain top of mind.

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