'Can I Profit from My Own Name and Likeness as a College Athlete?' The Predictive Legal Analytics of a College Player’s Publicity Rights vs. First Amendment Rights of Others
46 Pages Posted: 20 Jan 2016
Date Written: January 29, 2015
This Article is focused entirely on the battle between athlete’s NIL/publicity rights and the First Amendment rights of those who use those rights in their own works or products. The aforementioned publicity rights settlements predictably do not provide any admission of liability or wrongdoing by the NCAA or any other defendants. Therefore, the primary source of legal authority and precedent on the publicity rights issues reside in the Hart and Keller opinions discussed in this Article.
In the three cases of import, Keller, Hart, and O'Bannon, the athletes abided by the NCAA rules that required that they refrain from taking advantage of their relative fame through licensing their NILs or otherwise being paid in any form, directly or indirectly from the sport. In all three cases, the NCAA and its licensee partners gained substantial revenue using the NILs of the athletes. Furthermore, in all three cases the athletes did not receive proceeds from the licensing or use of their NILs from the NCAA or its partners before or after the collegiate eligibility expired.
This article provides a continuum of factors that help predict when the NCAA and licensed partners no longer have prevailing First Amendment rights over the publicity rights of collegiate athletes.
Keywords: O'Bannon, Keller, Hart, publicity rights, First Amendment, EA Sports, NCAA
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