Sports Licensing in College Athletics

By: Pamela Williams Kelly, Esq.

Recently, I had a conversation with my cousin, “John,” who played college basketball for the last 4 years. He was, of course, hopeful about getting drafted by a NBA team or the European Basketball League. But he also had a future goal of becoming a sports broadcaster. So, I suggested that John begin securing speaking engagements to practice and hone his speaking skills and to build his resume. When John was asked to be the guest speaker at a high school event in his hometown, we anticipated a large turnout. I suggested that John get 8 ½ x 11 glossy copies made of his college action photos and sign them at the event. And that is where a simple idea became the inspiration for this legal article.

John did not hire anyone to take professional photos of him while he played college basketball. Instead, his picture collection consisted of smartphone photos, Instagram selfies and the like. Sadly, the pictures of John hanging in mid-air for a dunk, reflecting on his game in the locker room or pounding his chest after a three-point “I can’t believe I made that shot” all belonged to someone else. And that someone was the university where he played basketball.

Each spring, thousands of high school students are eager to sign the college letter of intent. But these young student-athletes are not fully aware of the permissions that they give to the university such as a licensing right. Normally, each of us has the exclusive right to control how our photo and name is used. But that right is altered in favor of the university when a student-athlete accepts the college tuition and grants the university a license. Now, the university is the holder of the right to determine how the student’s photo and name will be used. And that license extends beyond university publications or events.

While a student-athlete is prohibited by the National Collegiate Athletic Association (NCAA) from receiving any compensation for the use of the student’s name, image and likeness, the same prohibition does not apply to the university. It has the right to allow another party to use its license in exchange for a fee or royalty payment. For example, the university could license the use of the student-athlete’s likeness for a video game or a telecast that could result in thousands of dollars of royalties for the university but not a penny for the student-athlete.

Arguments have been made that the students are amateurs and that they are already compensated through room, board and tuition. While this position has been the norm for many years, there is a change in the air. In the next article, I will discuss how a recent court decision may give the entering student-athletes class of 2015 a financial start that is not dependent on the NBA.

Legal Disclaimer: This article is not intended to serve as legal or other advice nor does it create an attorney-client relationship. Attorney Kelly may be reached at attorneypwkelly@gmail.com or 901-210-6551.