When One Door Opens, What Happens To Others? First Amendment Implications of Name, Image, and Likeness.

By Carly Amatuzzo, Staff Writer Vol. 20

Introduction

In the world of collegiate athletics, the past two years have been a series of legislative and administrative battles culminating in a judicial one. In June 2020, the Supreme Court held that the National Collegiate Athletic Association’s (NCAA) rules limiting education-related compensation for student-athletes violated federal antitrust laws. This case served as a predictor that the NCAA could expect many lawsuits regarding the ban on name, image, and likeness (NIL) rights in the near future and that it would likely be unsuccessful in those suits. As a result, in July 2021, a new NCAA policy went into effect, which allows student-athletes to retain their collegiate status yet gain the right to profit from their NIL.

NIL rights give an individual the “exclusive right to license the use of their identity for commercial promotion.” Historically, student-athletes have relinquished the right to profit from their NIL in exchange for the ability to play sports at the collegiate level. But now, with the former restrictions gone, student-athletes can make arrangements with businesses, in which the business pays the athlete to feature the athlete in advertisements or products, and host public appearances. The NCAA’s new policy removes the ban on NIL rights, but it leaves the door open for states and individual colleges to restrict student-athletes’ potential endorsement deals for various reasons.

By the NCAA qualifying NIL rules with additional guidelines, this new policy carries the potential for significant implications and litigation. While the Supreme Court has not yet addressed First Amendment consequences, they should be considered in light of anticipated litigation.

Student versus Employee Distinction and Endorsement Restrictions

Historically, student-athletes have intentionally been considered students, notemployees, so schools could avoid paying workers’ compensation, insurance, and taxes. At public universities, student-athletes would face fewer restrictions if classified as students than employees. As students, they would possess the same First Amendment protections as other students, but as employees, their right to free speech would be balanced against the university’s interest in the “efficiency of the public services it performs.” Public universities face a very difficult standard, under which mandatory-approval policies, such as NIL limitations, have consistently been found “unlawfully broad”. Additionally, there is a strong argument that NIL restrictions at public universities violate the First Amendment, whether athletes are characterized as students or employees.

However, at private universities, student-athletes face greater restrictions when classified as students compared to employees. As discussed above, private universities have greater authority to restrict student First Amendment rights while employees are be protected by the National Labor Relations Act. However, there could soon be a nationwide shift. In September, student-athletes were classified as statutory employees in a National Labor Relations Board memorandum, meaning they have the same rights as other employees. As a result, private universities seem to be heading towards the inevitable decision of classifying student-athletes as employees, and public institutions may not be far behind. Students in other roles at public universities (such as teachers’ assistants and medical students) are already considered both students and employees, and a pending lawsuit could cause a classification change and limit restrictions public universities could employ for student-athletes.

Public versus Private Institutions and Endorsement Restrictions

Under the First Amendment, private and public institutions differ in their ability to restrict student speech, such as speech endorsing unpopular positions. In Healy v. James, the Supreme Court held that public universities, as government institutions, must uphold the First Amendment. Even though public institutions should be limited in their ability to restrict endorsement deals, many have imposed restrictions that may conflict with First Amendment protections. For example, marijuana is legal in Illinois, but student-athletes at the University of Illinois, a public institution, are prohibited from endorsing marijuana under state law, potentially violating their First Amendment rights. Public universities are public forums, as is social media, meaning that a student-athlete’s speech should rarely be restricted based on subject matter. Therefore, at an Illinois public university, a student-athlete should be able to endorse a dispensary if they choose.

Marketing one’s name, image, and likeness also overlaps with commercial speech. Advertising and solicitation agreements of student-athletes should be protected as a form of expression. However, NIL restrictions could be perceived as an “attempt to preemptively bar athletes from using their public personas to endorse entities or products.” Additionally, NIL speech could easily expand into non-commercial speech and invoke the overbreadth doctrine, under which NIL policies, such as the restriction on any endorsements that conflict with institutional values, would be found to be unconstitutionally overbroad and potentially void for vagueness.

Unlike public institutions, private universities are not subject to the same First Amendment obligations and therefore have greater legal freedom to restrict the speech of students attending their school. Where student-athletes are concerned, private institutions would have more power to restrict endorsements deals than public institutions. For example, Utah state law does not limit or prevent the sale or use of condoms. However, Brigham Young University, as a private, Mormon institution, can prevent an athlete from entering into an endorsement deal with a condom company if it determines that such a deal does not “conform to the BYU Honor Code Standards.” Endorsing sexual health products may appear to violate the university’s standard to “live a chaste and virtuous life.” If found to have violated the honor code, students can receive sanctions ranging from a warning to suspension or expulsion, and there is no reason to believe sanctions would differ for a violation stemming from an unfavorable endorsement deal.

These examples tend to raise more questions than they answer in the world of NIL. Why are schools empowered to determine the values a student-athletes’ endorsements must comply with? Why would an athlete’s First Amendment rights become subservient to a university’s honor code or policies?

One could argue that public universities can already restrict other rights without violating the First Amendment. For example, public universities must uphold the right to assemble but are permitted to restrict such events to “free-speech zones”. Similarly, NIL endorsements could be subject to restrictions at public universities as well. However, the importance of protecting the First Amendment rights of students should not be overlooked. The First Amendment safeguards students’ ability to think critically and to express themselves, which is integral to “educating informed, engaged citizens.” Moreover, afterDixon v. Alabamain 1961,the in loco parentis relationship between students and colleges, which allowed schools to serve as substitute parents while students were at their university, is essentially dead. Since then, a clear pattern has emerged that students are constitutionally protected from “arbitrary infringement” by a college. As a result, a school’s ability to regulate the personal lives of its students and their speech on social media has been undermined.

Conclusion

The new NIL policy opens a door long closed to student-athletes, but along with that comes potential First Amendment implications. Classification discrepancies and inconsistencies between public and private institutions are just two of many First Amendment implications that will be challenged under the new NIL policy in the foreseeable future.

All of the changing policies, new uncharted profitable opportunities for young student-athletes, and obscure restrictions of what these athletes can be associated with create ambiguity, which can impede compliance. Furthermore, delegating so much power to colleges runs the risk that they will infringe upon the First Amendment right of student-athletes. The NCAA’s new NIL policy may signify one step forward for student-athletes, but along with it comes a few steps back for First Amendment protections.

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