The Evolution of the Role of Intellectual Property in Collegiate Athletics

Since the National Collegiate Athletic Association (NCAA) first allowed student-athletes to profit from their Name, Image, and Likeness in 2021, much of the attention has been on commercialization, branding, and endorsements. With the revised 2024 NIL rules, though, the concentration is now geared toward the inclusion of intellectual property rights, such as when and how student-athletes can protect their NIL through trademarks, among other IP strategies. To maximize the use of one’s personal brand while navigating complex collegiate athletics, interaction between NIL and IP law must be realized.

NIL, in a word or two, denotes a legal right an individual may hold of profiting from the use of one’s identity, including name, image, and other personal attributes. The same rights have conventionally been curtailed for student-athletes because of NCAA regulations, but with the coming of NIL compensation, lucrative endorsement deals, sponsorships, and merchandising opportunities have opened up.

However, with student-athletes diving into the commercial market, they will have to think about how intellectual property law-trademark law, in particular-can support and protect their brand. If an athlete’s NIL is not properly legally protected, third parties will be able to use it without permission-a situation that will make the value of their personal brand less valuable.

Key NIL Rule Changes in 2024

Updates to the NIL rules in 2024 include some key changes in an effort to add more transparency and further protections for student-athletes. These, in turn, create important implications for athletes in securing and protecting their intellectual property.

1. Increased Institutional Support for NIL Opportunities

One of the key changes in the 2024 rules is the allowance of schools to assist student-athletes in finding and negotiating a NIL. The institution can also be supportive in providing intellectual property rights for the athletes, even to advise on when and how they can file for trademarks of their name, logos, or other brand elements. Universities can provide educational resources or refer athletes to legal experts who will support them through trademark registration.

However, universities still cannot compensate athletes directly nor use NIL deals as recruiting inducements. Support services must be educative in nature and facilitating in providing the ability for athletes to protect their personal brand while remaining compliant with NCAA rules.

2. Disclosure and Compliance Requirements

Under the 2024 rules, student-athletes would be required to disclose all NIL deals at values of $600 or more to their institutions. Such disclosures are to be in a deal with compensation and services provided, with an identified third-party provider of such services. For athletes to protect their NIL via trademarks, reporting will be necessary in any agreements related to the commercialization of their intellectual property, such as licensing agreements whereby their trademarked name or logo is used.

This would also extend the reporting requirement to third-party NIL service providers, such as agents and legal counsels of athletes who assist them in applying for trademark registration and protecting their IP. In this way, the NCAA can try to make the NIL deals fair and comply with federal and state IP laws.

Intellectual Property Considerations for Student-Athletes

Because NIL deals create personal brands, intellectual property law protects the commercial interest of athletes. Some of the IP strategies that student-athletes should consider in the management of NIL rights include:

1. Trademarking Name, Image, and Likeness

Trademark protection refers to a name, logo, or slogan used in commerce being afforded protection under the law. Trademarking one’s name or nickname allows the student-athlete to prevent any other person from financially benefiting without their consent. An athlete secures exclusive rights to use the trademark when associated with the sale of goods and services: once established, they have protection over merchandise, endorsements, and a number of other commercial activities.

The student-athletes should race to immediately file a trademark when their brands start to take public recognition. Otherwise, if this is left too long, others might commence using the name or the likeness of a student without permission, thus making the overall value of such a brand go down. Another advantage of filing early is that it avoids the risk of “trademark squatting,” a situation where third parties would register an athlete’s name or even logo with the intent of selling it back for a higher price.

2. Branding and Logos

Other than trademarking the name itself, an athlete can trademark and create logos or sayings that identify the brand. This might be a particular catchphrase or nickname that the athlete has and would like to copyright and then turn into a logo that represents himself to sponsors and fans. Then, this could be placed on various apparatus, clothing, and other merchandise as part of a larger merchandise deal​.

By trademarking these aspects of their brands, student-athletes may license their logos to companies desiring to use them on products and, through the process, open a revenue stream for themselves while retaining control over how their brand is represented.

3. Licensing Agreements

Once a trademark is in place, student-athletes can leverage and exploit their intellectual property through licensing agreements. A license allows someone else to use an athlete’s name, image, or likeness in exchange for remuneration, which comes in many forms but often the form of royalties. For instance, an athlete might license his name or logo to a sportswear company to appear on clothes or other products​.

These can be very lucrative deals, but they require a lot of negotiation to ensure that the athlete keeps much control over their NIL usage. With the help of licensing agreements and other legal professionals, athletes need to develop an agreement that articulates the scope, duration, and compensation structure under which the license would be issued.

The Role of Universities in Encouraging Trademark Registration

Under the new rules in 2024, universities will be allowed to give more direct support to the student-athletes in pursuing NIL opportunities, including the process for protecting their intellectual property. This support will now be allowed to include:

• Educational workshops on intellectual property law and protection importance of a trademark
• Connections to legal resources, such as attorneys specializing in trademark registration and NIL compliance.
• Guidance regarding the management of the commercial aspects of the brand, licensing agreements, and enforcement of trademarks.

Universities support their student-athletes by encouraging them to protect their NIL through strategic plans pertaining to intellectual property in a manner that will benefit long-term success yet still adhere to the requirements of the NCAA​.

Intellectual Property Protection and Pitfalls to Avoid

While there is some major protection to be granted by trademarking a name or logo, a few pitfalls also exist that athletes should be aware of in managing intellectual property:

• Failure to File Early: There are some athletes who wait too long to file for a trademark application and find out someone else has already registered their name or logo. Such instances make for costly legal battles that limit one’s opportunities for profiting from the brand.
• Overlapping Rights: Athletes must take great care not to step on the rights of others. For example, if an athlete has a nickname that already sounds very much like a trademarked name, his actions could be challenged legally every time he commercially uses the nickname.
• Improper Licensing: Licensing agreements should be set up correctly in order for an athlete to control their brand. Inappropriate drafting of agreements may lead to losing control of how the athlete’s NIL is used, which could result in loss of reputation and earning capability.

How to Navigate NIL and IP in 2024 and Beyond

The changes within the 2024 NCAA NIL rules signal a new phase in the commercialization of college athletics, driven by intellectual property rights and brand protection. In this regard, student-athletes will have the opportunity to trademark their name, image, and likeness as a critical step toward making their brand viable and remaining in control of their commercial identity.

Intellectual property education and support will continue to be even more integral as universities move to scale their resources in advising athletes through NIL agreements. Understanding and applying intellectual property law empowers the student-athlete for a more self-directed approach with their NIL, creating new opportunities for revenue streams and access to brand development that can extend far beyond a collegiate career.