The Emerging Name, Image, and Likeness Industry and the Perils of Appropriating "Entrepreneurial" Collegiate Athletes' and "Vengeful" Minors' Property Interests - Historical and Empirical Guidance from Courts' Rights of Publicity, Misappropriation, and Breach of Contract Decisions

Authors

Willy E. Rice, St. Mary's University School of LawFollow

Journal Title

Berkeley Journal of Entertainment & Sports Law

Volume

13

Issue

1

First Page

99

Document Type

Article

Publication Information

2024

Abstract

From the late-1880s to the early-2020s, universities and the collegiate sports industry exploited millions of "college kids" as well as their parent investors by preventing "entrepreneurial athletes" from monetizing their names, images, and likenesses (NILs). Yet, during the same era, the collegiate-athletics industry like the movie and music industries appropriated young people's NILs and pocketed billions of dollars. In 2021, the Supreme Court decided NCAA v. Alston and embraced the Ninth Circuit's ruling in O'Bannon v. NCAA. Ostensibly, these decisions and thirty plus state NIL statutes terminated the "official" exploitation of students. Currently, entrepreneurial students and some parents may commercialize students' NILs. But current NIL statutes do not stop corporate entities, businesses, associations, or universities from surreptitiously exploiting students' property interests. This Article explains why the exploitation will continue. In short, current NIL protections are wanting as numerous statutory defenses, conditions, limitations, and exceptions undermine (intentionally or unintentionally) students' publicity and contractual rights. Comparable state and federal statutes offer significantly more protections for young actors and musicians.

The Article also outlines the results of an empirical study, revealing the historical and statistical influences of legal and extralegal factors on the dispositions of publicity right, misappropriation, and breach of contract actions in state and federal courts. Generally, students, minors, and parents are significantly less likely to win those types of disputes. And state legislatures' failure to enact more enhanced NIL remedies will arguably encourage "business predators" as well as educational institutions to continue exploiting millions of collegiate and high school students. Also, a failure to enact more robust remedies will likely encourage some exploited students, as well as some parents, to apply extralegal remedies instead of seeking redress in courts of law. Optimistically, the findings will provide some legal, historical, and statistical guidance for business entities and state legislators who want to end the exploitation of collegiate students and their "financially strapped" parent investors.

Recommended Citation

Willy E. Rice, The Emerging Name, Image, and Likeness Industry and the Perils of Appropriating "Entrepreneurial" Collegiate Athletes' and "Vengeful" Minors' Property Interests - Historical and Empirical Guidance from Courts' Rights of Publicity, Misappropriation, and Breach of Contract Decisions, 1830-2023, 13 Berkeley J. Ent. & Sports L. 99 (2024).