Abstract
The landscape of collegiate athletics continues to change. For the first time, colleges and universities are able to compensate athletes directly for their names, images, and likenesses (NILs) including as used in broadcasts. However, the legal justification for payments for such broadcast NIL payments is thin and therefore appears to be an attempt to preserve the ill-fated concept of amateurism.
INTRODUCTION
Many American colleges and universities have rich histories and traditions that date back hundreds of years. One of the longest-standing and most widely known of all collegiate traditions has been the adherence of collegiate athletics to the principle of amateurism, or the idea that college athletes cannot be compensated for their athletic performance. Over the last decade, numerous current and former student-athletes have sought to chip away at the tradition of amateurism, both through the legal system and in the court of public opinion.
On June 6, 2025, Judge Claudia Wilken of the Northern District Court of California granted final approval of a settlement agreement in In re: College Athlete NIL Litigation (the House Settlement). The plaintiffs in House challenged NCAA and athletics conference rules restricting and prohibiting college athlete compensation for the use of their name, image, or likeness, including in broadcasts. NIL, however, is not a legally cognizable right, but rather an NCAA-created reworking of athletes’ rights of publicity.
The House Settlement included a framework related to the future use of student-athletes’ rights of publicity, including those related to compensation for participation in broadcast athletics events. The House Settlement created a new label for rights of publicity related to broadcasts: broadcast NIL or BNIL. However, the House Settlement does not disturb the long-standing prohibition on colleges and universities compensating athletes directly for their participation in athletics.
Instead, the settlement’s framework provides that compensation from colleges and universities directly to athletes must be in exchange for the use of their rights of publicity. In other words, higher education institutions may directly compensate athletes for their athletics participation indirectly. Further, such compensation is subject to a cap calculated as a percentage of average revenue of specific high-level athletics departments. Finally, some third parties may only compensate athletes for use of their rights of publicity if the amount paid to the athlete is for a valid business purpose and within a reasonable range of compensation as determined by a third-party administrator, Deloitte.
The House Settlement allows colleges and universities to pay athletes to ultimately license broadcasts of athletics competitions the athletes participate in but not for participation in those athletics competitions. While this seems nonsensical on its face, an analysis of the jurisprudence surrounding athletes’ rights of publicity in athletics broadcasts demonstrates that the athletes may not even have a legal right to the broadcasts in which they participate. Accordingly, this article analyzes the legal basis for compensating college athletes for their rights of publicity in athletics broadcasts and addresses whether BNIL can preserve the concept of amateurism.
I. NCAA AMATEURISM AND RIGHTS OF PUBLICITY
The right to publicity has long been a convoluted and evolving legal concept, marked by inconsistent interpretations across jurisdictions, differing state statutes and rationales, and uncertainty about its scope and application. Publicity rights originally stemmed from the broader concept of the right to privacy, famously described by Samuel Warren and Louis Brandeis in their 1890 Harvard Law Review article concerning the “right to be let alone.” While Warren and Brandeis laid the groundwork for protections against unauthorized publication of private facts and images, in 1953, the Second Circuit advanced this concept by recognizing that individuals have not only the right to control the commercial use of their identity but also to profit from it. Judge Jerome Frank coined the term “the right to publicity” in the landmark case Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., which he articulated as an intellectual property right to one’s public persona.
The NCAA has long limited participation in its events to amateur athletes, issuing strict penalties to athletes found to have violated this principle. However, what constitutes “amateur” has evolved over time. Decisions regarding amateurism are not always as simple as the binary determination of whether the athlete is compensated for participation in athletics. Bloom v. NCAA demonstrates how the definition of amateurism can be applied expansively, especially as related to rights of publicity.
Jeremy Bloom was recruited to play football at the University of Colorado beginning in the fall of 2002. At the time of his recruitment, Bloom competed professionally, became a world champion skier, and entered into paid endorsement and entertainment agreements. Bloom was concerned that these agreements might interfere with his ability to play NCAA-sanctioned football. Through the University of Colorado, he asked the NCAA to waive the applicability of rules restricting athletes from receiving compensation from such agreements.
According to the NCAA, Bloom was no longer an amateur, and therefore was prohibited from participating in NCAA athletics, because he had profited from his NIL. The NCAA made this determination even though the value of Bloom’s NIL was derived from his success as a skier and unrelated to his potential as a collegiate football athlete because it was not independent of athletics ability. The court denied Bloom’s requests for relief and stated that, although student-athletes have the right to be professional athletes, they do not have the right to simultaneously engage in endorsement or paid media activity and maintain their eligibility to participate in amateur competition. The Colorado Court of Appeals agreed with the trial court that the legitimate purpose of the NCAA bylaws was to preserve the clear line of demarcation between intercollegiate athletics and professional sports.
The case stands as an example of how the NCAA created a national standard that prohibited college athletes from profiting from common law and state law rights of publicity. While rights of publicity are not always clear and consistent, the NCAA’s prohibition on monetizing rights of publicity has been.
II. EVOLUTION OF RIGHTS OF PUBLICITY LAW RELATED TO PERFORMANCES AND BROADCASTS
A. The First Amendment Does Not Protect Third Parties’ Broadcasts
In 1977, the Supreme Court for the first and, to date, only time addressed the interplay of the First Amendment and rights of publicity; specifically, whether the First Amendment immunized a media provider from damages for allegedly infringing on a performer’s state law right of publicity. The plaintiff, Zacchini, was a performer of a “human cannonball” act at a county fair in Ohio, producing the show himself for the interested public to observe. After being asked not to film the performance, a freelance reporter for the defendant recorded the entire fifteen-second act, which was then featured later that night in its entirety on a news broadcast. Zacchini brought suit, alleging that the broadcaster showed and commercialized the film of his act without his consent.
The Court reasoned that broadcasting Zacchini’s entire act posed a substantial threat to the economic value of his performance. Broadcasting the entire performance was different from simply showing his picture or telling a story about the performance, and Zacchini’s right of exclusive control over the publicity given to the performance was fundamental to his ability to earn a living as an entertainer. The Court also recognized the importance of protecting the economic incentive to make the investment required to produce a performance of interest to the public. Accordingly, it concluded that the First Amendment did not give the media the right to appropriate, without consent or remuneration, the products of others.
In 2011, the Seventh Circuit applied Zacchini to reject the theory that coverage and broadcast are identical. In Wisconsin Interscholastic Athletic Ass’n v. Gannett Co., Inc., the court concluded that a producer of entertainment is entitled to charge a fee in exchange for consent to broadcast and that the First Amendment does not create an unlimited right to stream entire athletic contests without permission.
B. The First Amendment Does Not Preempt College Athletes’ Rights of Publicity Claims for Use of Their NIL in Video Games
In the late 2000s, courts around the country began hearing cases related to the use of college athletes’ likenesses in popular media platforms such as broadcasts and video games. One such dispute involved Ed O’Bannon, who discovered a virtual version of himself in a college basketball video game. In O’Bannon v. National Collegiate Athletic Ass’n, the Ninth Circuit focused primarily on antitrust issues, but it noted that the plaintiffs had established injury in fact from rules foreclosing the market for their NILs in video games.
A more direct discussion of publicity rights in this context appeared in In re NCAA Student-Athlete Name & Likeness Licensing Litigation, involving former quarterback Samuel Keller. Keller sued Electronic Arts after discovering an avatar closely resembling him in an NCAA football video game. The Ninth Circuit rejected Electronic Arts’ First Amendment defenses and concluded that the game did not sufficiently transform Keller’s identity. The court also distinguished video games from news reporting or broadcasts, emphasizing that a game is a game, not a reference source.
C. Broadcast NIL Is Not a Right for College Athletes
The Northern District of California later suggested, in litigation involving former student-athletes, that absent NCAA restrictions athletes might be able to assert rights of publicity against broadcasters who aired entire games. It reasoned that the First Amendment does not guarantee media organizations an unlimited right to broadcast entire collegiate sporting events and that athletes could have an economic interest in licensing their participation in those events.
However, Marshall v. ESPN Inc. rejected that framework. In Marshall, current and former student-athletes sought recovery from conferences, broadcasters, and licensing agencies that allegedly profited from the broadcast and use of athletes’ NIL without permission. The court found no applicable authority for participants in sporting events having a common law right of publicity in broadcasts. It emphasized that Zacchini involved a performer who was also the producer of his own act, and that broadcasts of college athletics are different. The court concluded that cases protecting producers’ interests in broadcasts do not create a BNIL right for athletes who merely participate in those events.
These cases emphasize that courts are primarily interested in compensating producers for their product, namely the broadcast, rather than compensating individual participants in the event. The cases distinguish broadcasting from reporting to ensure the producer of the broadcast benefits from its own production while still protecting First Amendment rights to report on newsworthy events. Under that reasoning, there is no common law right of publicity for college athletes appearing in broadcasts in virtually all jurisdictions in the United States.
III. BNIL AND THE HOUSE SETTLEMENT
As demonstrated by Marshall and the vast majority of applicable case law, college athletes do not have a right to BNIL. Nevertheless, the parties in the House Settlement allocated substantial compensation for former athletes’ alleged BNIL interests.
The injunctive portion of the House Settlement provides that institutions that opt in may provide two new categories of benefits to student-athletes: payments in exchange for the use of their NIL and compensation in the form of direct benefits worth up to 22% of the Power Five schools’ average athletic revenues each year. Because the direct benefit amount is calculated as a proportion of athletics revenues, it is being colloquially referred to as revenue share. The settlement is silent on what consideration the athletes offer in exchange for the revenue share payments.
This raises the question of what consideration the athletes provide for these revenue share payments. Per NCAA rules, the consideration cannot be the athletes’ participation in athletics contests. The parties might argue that the consideration is the athletes’ BNIL, since the vast majority of college athletics revenue is derived from broadcast agreements. But the legal analysis above suggests these rights are not cognizable. Indeed, the NCAA and defendant conferences have repeatedly argued that rights of publicity related to broadcasts are not cognizable. Moreover, schools may choose not to compensate all of their athletes with revenue share payments, meaning that some would be compensated for their BNIL and others would not.
The settlement’s silence on revenue share consideration appears intended to thread the needle of compensating athletes while preserving the NCAA’s amateurism model. However, to the extent that silence is filled with BNIL, the legal basis for such an argument is thin at best. Accordingly, the model will likely not withstand judicial scrutiny and is unsustainable without additional legislative action.
IV. CONCLUSION
Forty years ago, the Supreme Court stated that the NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports. Now, the NCAA and defendant conferences in the House Settlement have agreed to pay nearly $2 billion for former athletes’ BNIL, a right that is not clearly recognized by law. Further, colleges and universities can share a percentage of revenues, including broadcast revenue, directly with student-athletes. Yet again, the NCAA has couched its arguments for not paying student-athletes in innocuous labels.
Whether it is with NIL, BNIL, revenue share, or any other label, the fundamental quid pro quo between higher education institutions and students participating in athletics is most closely analogous to a producer compensating a performer. Accordingly, the NCAA and its member institutions should prepare for a landscape where that reality is recognized and regulated in compliance with all applicable law.
