The Legal Brief
Name, Image, and Likeness: What's Next for College Sports
July 19, 2021
In a landmark decision issued in June 2021, the United States Supreme Court unanimously ruled in National Collegiate Athletic Assoc. v. Alston that the NCAA and eleven Division I conferences violated Section 1 of the Sherman Antitrust Act, which prohibits restraining certain trade or commerce. The case led almost immediately to a new NCAA interim policy that allows student athletes from all three divisions to monetize their name, image, and likeness, often referred to as “NIL.”
Nearly every American student athlete - estimated at more than 450,000 - now remains free to create and sell branded merchandise showcasing their NIL. Athlete marketing platform Opendorse.com estimates that collegiate NIL marketing could hit $500 million in 2022 and $1 billion per year after that.
Graham Mertz, a quarterback for the Wisconsin Badgers, filed for a trademark shortly after the Supreme Court decision. Mertz applied for a mark featuring his initials, GM, for the sale of shirts, sports caps and hats, and launched a “wearables website.” Many D-I universities now provide extensive NIL training and coaching to athletes covering topics such as how to build and grow a personal brand, how to secure endorsements and sponsors, and how to run a business and protect your intellectual property. NIL will likely fuel a collegiate arms race, with the best college athletes more likely to attend schools that can boost their NIL earning potential.
NCAA president Mark Emmert and NCAA leadership continue calls for a national standard, but thus far no Congressional legislation has garnered enough support. Until then, some details of NIL will vary from state to state. Student athlete compensation remains a volatile and complex issue. Both schools and athletes wishing to protect their NIL and earning potential should consider experienced intellectual property attorneys to help navigate these uncharted waters.