College Athletes Can Profit from their Names, Images, and Likenesses. Now What?

By Ross Crowell, Law Library GRA Sports Law Correspondent

Prior to 2021, college athletes were strictly seen as unpaid athletes. That has changed over the past several months, as now college athletes are able to make money off of their name, image and likeness (“NIL”). While the schools are still not allowed to directly pay their student athletes, the student athletes can now make money from things like advertisements and social media. However, the confusing legal environment surrounding NIL means that colleges and athletes are unsure of what they can and cannot do.

The history behind the change involves federalism, activism, and antitrust law. First, Florida passed a state law in June 2020 that legalized college athletes to capitalize off of their name, image and likeness, with the law going into effect on July, 1, 2021. Several other states followed Florida. These state laws, along with activism by the college athletes , a Supreme Court opinion holding NCAA limits on education-related benefits to be invalid under federal antitrust law, and other events, led to the NCAA adopting a temporary rule change on June 30, 2021, allowing college athletes to benefit from their name, image, and likeness.

The NCAA abruptly enacting this temporary rule change has created mass confusion among its member schools, as there is currently not much clarity on what is and what is not allowed. Additionally, different states having very different NIL laws has put some schools at a disadvantage. For example, Alabama and Florida, among other states, have stricter NIL laws than other states. Thus, college athletes in those jurisdictions cannot take advantage of the NIL to the same degree as athletes in states that do not have any NIL law at all (such as Kentucky and Virginia). 

Sports balls on a background comprised of $100 bills.


With players signing lucrative NIL contracts to appear in national advertisements for established brands, stakeholders are seeking clarity and uniformity. From the perspective of colleges, restrictive state NIL laws could be a disadvantage in recruiting, or even prompt top athletes to transfer to schools where they can fully take advantage of NIL. This resulted in the Alabama House voting in favor of repealing its prior law. Other states likely will follow, as the state legislatures will want their universities on a level playing field with schools in other states. 

The best solution to this issue may be to enact a new federal law to restore uniformity by preempting the current state NIL laws. Instead of 50 different state laws dictating how their college athletes can profit from their NILs, there would be a single rule that all universities and teams have to play by. 

The NCAA seems to feel the same way. When the NCAA announced the legality of NIL on June 30, 2021, Division I Board of Directors chair Denise Trauth said, “with this interim solution in place, we will continue to work with Congress to adopt federal legislation to support student-athletes.” Congress held a hearing on October 1, 2021, where NCAA president Mark Emmert called on Congress to act, claiming that the NCAA has an urgent need for NIL federal framework.

So far, there has not been any federal or NCAA action taken. This will be an interesting issue to follow, as many college sports pundits claim that NIL has turned college athletics into the “wild wild west” without an overarching law. 

Breyer Retires: some helpful and interesting resources

As you surely know, Justice Breyer recently announced that he would be stepping down at the end of this term, setting another Supreme Court confirmation process in motion. However, you may not know how to further research Breyer’s legacy and SCOTUS confirmations.

Breyer Retires: some helpful  and interesting resources

Justice Breyer was well-liked by his colleagues and had a reputation for asking colorful hypotheticals from the bench. SCOTUSBlog has great coverage of his overall legacy, including many reminiscences from former clerks. Before his nomination to the federal bench, Breyer taught admin law, and some of the best scholarship on his SCOTUS tenure focuses on this subject, such as this Justice Stephen Breyer’s Contribution to Administrative Law symposium. During his nearly three decades on the Supreme Court, he (of course) wrote important opinions on a wide array of topics, often crafting compromises and creating nuanced balanced tests: the Congressional Research Service (CRS for short—you’ll be seeing a whole lot more of them in this post) recently published a nice overview of his jurisprudence.

To this writer, his most memorable opinion was in dissent, issued in Parents Involved in Community Schools v. Seattle School District No. 1, a case that sharply limited desegregation efforts in public schools. I would encourage anyone who’s ever dismissed Justice Breyer as a bloodless technocrat to listen to him read what Justice Stevens called his “eloquent and unanswerable dissent” from the bench, asking “what happened to stare decisis?”

With Breyer’s imminent retirement, the appointment process for his successor begins. If you’d like to further explore that process, HeinOnline’s History of Supreme Court Nominations collects an impressive array of primary and secondary sources. Those sources include this excellent CRS report on what goes into the President’s selection of a nominee. There are also helpful CRS reports on the rest of the process, including one on the nominee’s consideration by the Senate Judiciary Committee and another discussing the limitations and customs surrounding the questions Senators ask judicial nominees during confirmation hearings.

As you might expect, there is a plethora of scholarship on the appointment process. For a data-based deep-dive into nominations and confirmations from the institutional perspective of SCOTUS, you can’t beat The Supreme Court Compendium‘s chapter on the topic. The legal scholarship on this topic is voluminous, with law review articles exploring the original meaning of ‘advice and consent’ and analyzing SCOTUS confirmations from a historical perspective. Another major strain of scholarship analyzes the role of ideology or politics in the process, as well as the desirability of obscuring that role. Tackling the politics from another perspective, there are also quite a few articles discussing nominations within the context of the Court’s antidemocratic or countermajoritarian characteristics. Other legal scholarship approaches the topic from more oblique angles, with intriguing articles looking at confirmation hearings as “a valuable form of cultural expression” and elaborating on martial metaphors for the confirmation process.

In addition to the legal scholarship discussed above, there is a veritable ton of academic work on SCOTUS appointments taking place in other disciplines, especially political science. Scholars in that field have written interesting articles on topics such as the timing of nominations, the President’s constraints in choosing a nominee, the role of interest groups in nominations, the role of shared identity in public support for a nominee, and how contested nominations contribute to public polarization.

For a deeper dive, there are some great research guides out there that provide a more in-depth treatment of the many, many resources available on these topics. And, of course, if there are any resources on Justice Breyer’s retirement, or on SCOTUS appointments more generally, that you have found to be especially useful or interesting, be sure to let us know in the comments.