Hunton Retail Law Resource

In the US, NIL rights (name, image, and likeness) are grouped under the right of publicity, which generally “prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of one’s persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion.” NIL rules allow athletes to profit off their personal brands with promotions for various services and products through social media posts, appearances, sponsorships, autograph sales, endorsement deals and private training classes or camps.  Prior to the introduction of these laws, college athletes could not endorse products or services, under any circumstances.

While there is no federal law recognizing the right of publicity, or NIL rights, a majority of states recognize a right of publicity by statute, case law, or both. Twenty-five states have already approved some type of NIL statute that will go into effect by 2023. Seventeen states are in the midst of considering NIL statutes, but have not yet enacted them. Additionally, Senate is considering six NIL statutes introduced by various senators from around the country.

ESPN gathered data and statistics from experts and found that star athletes could earn up to $1 million through social media posts. Likewise, Olympic athletes could earn hundreds of thousands of dollars through advertisements and clothing promotions. In general, athletes’ promotional value will depend their popularity and the size of the market in which they reside. See the Washington Post's article for more.

For most athletes, endorsement deals can come from local businesses. For example, Onward Reserve, a men’s apparel brand, will sponsor a number of University of Georgia athletes to endorse its products. Similarly, University of Miami quarterback D'Eriq King announced on Twitter that he was signing an endorsement deal with College Hunks Hauling Junk, along with teammate Bubba Bolden. King also paired with Florida State quarterback McKenzie Milton as co-founders on NIL platform Dreamfield, which focuses on booking live events for student athletes. And, University of Iowa basketball player Jordan Bohannon paired with Boomin Iowa Fireworks for a meet-and-greet session at the fireworks business in Windsor Heights, Iowa.

Without question, the future of advertising will be greatly affected by the introduction of these laws, and only time will tell how it will impact the retail industry.

Hunton Andrews Kurth LLP has extensive working with retailers to handle exactly these types of issues, if you have any particular questions, please feel free to reach out to Jon Reichman or Sherli Furst.