NIL - Is this a new concept for athletes?

One of my favorite fun things to point out in my presentations with groups is that it is absolutely a misconception that NIL is new or only 5 years old. I laugh anytime I see an “expert” claim NIL is new. Let me clear up some basic misconceptions for folks in the back of the room in a very non-lawyerly type of fashion.

• Name, Image and Likeness or NIL and the longstanding legal precedents of right to publicity are really the same thing. NIL is simply put a more modern way of referring to the right of publicity in this era specifically for athletes, but it is not new.

• The idea of attaching a person’s name, image or likeness to something to attach additional value is not at all a new concept. If you don’t believe me, check out some images of 2,000 year old Julius Caesar coin.

• My favorite and what I argue is the most iconic “NIL” sports case did not involve a student-athlete, but it involved a professional athlete by the name of Honus Wagner. Sports card collectors know this card since it is one of the most iconic and most valuable cards in existence. If you don’t know the story, a tobacco company produced some of the earliest versions of sports cards. In 1909, a tobacco company produced a baseball card of the prolific ballplayer. Shortly into production, Wagner objected to the use of his NIL in association with promoting tobacco since kids were collecting the cards. The small amount of cards that did make there way into the market are incredibly scarce and valuable and really is an iconic moment for athletes using their voice to advocate for an important issue.

• The concept of using a student-athletes name, image or likeness has been allowed for decades in specific circumstances for college athletes (I can personally attest to many examples in my experience where I did permit it for public service announcements, and non-profit initiatives) albeit the ability to monetize was not allowed.

• What is new in this decade - is the ability for high school and college athletes the to directly monetize from these activities.

• Yes, there is a difference between NIL and rev share in a common practical manner, for the time being, unless rev share formerly becomes categorized as employment.