In the evolving sports landscape, an athlete's name, image, and likeness (NIL) are invaluable assets. Whether a seasoned professional, a collegiate student-athlete, or even a high-school athlete, safeguarding NIL rights is essential for building and maintaining a personal brand. Here are three steps athletes can take to help protect their personal brand.
Establish Your NIL Brand: Trademark Strategies for Athletes
"NIL" refers to an individual's right to control, license, and profit from the use of their personal identity-including not only one's name, image, and likeness, but also their voice, signature, and other identifiable aspects-for commercial purposes like promotional activities.
While NIL protections exist under state right of publicity laws, the scope of those protections can vary significantly across jurisdictions; approximately 30 states have statutes recognizing the right of publicity, while others apply common law. For instance, California's right of publicity law allows individuals to sue for statutory and actual damages, and provides a right to recover attorney's fees, while also offering robust post-mortem protections extending 70 years beyond an individual's death. However, not all state frameworks provide these same protections involving statutory damages, recovery of legal fees, or post-mortem protections, making it more difficult and potentially costly to enforce these rights.
To hedge against inconsistent state frameworks, athletes should consider registering a federal trademark where possible if they are using elements of their NIL in commerce as a source identifier. Federal trademark registrations provide exclusive rights to use a source identifier in connection with goods or services denoted by the international class for which the trademark is registered.
Athletes can trademark their nickname, slogan, logo, and almost any other recognizable word, symbol, or product that consumers associate with the athlete, as long as the applied-for trademark acts as a source identifier for a product or service. Among many others, examples of federal trademark classes that may be implicated in association with an athlete's NIL rights include:
- Class 25 - Clothing/Apparel
- Class 35 - Advertising and Endorsements
- Class 9 - Digital Media
These types of trademark registrations not only reinforce athletes' legal standing to assert rights but also may deter unauthorized commercial use of various aspects of an athlete's NIL.
Negotiate Favorable NIL Agreements
As NIL opportunities proliferate, it is crucial for athletes to negotiate contracts that protect their interests. Every negotiation is unique, but generally athletes should avoid agreements with vague or overly broad terms that could limit the athlete's future NIL opportunities. Athletes should be cognizant of the potential ramifications of granting perpetual rights to their NIL, even for archival purposes.
Athletes should ensure that any agreement specifies the scope, duration, and geographical limits of its terms. Consulting with legal counsel can help athletes navigate these complexities and secure agreements that align with their long-term goals.
Monitor and Enforce the Brand: Stop Unauthorized Use of Your Name, Image, and Likeness
Proactively monitoring the unauthorized use of an athlete's NIL is vital to the prevention of exploitation. Brand enforcement may look different for each athlete but may include monitoring social media and e-commerce websites to identify any unauthorized appearances on merchandise, and/or advertisements purporting to relate to the athlete, as the rise of generative AI may make it easier for unauthorized parties to create and distribute content using athletes' NIL without their consent.
If an athlete discovers unauthorized use of any elements of their NIL, legal professionals can assist in issuing cease-and-desist letters and taking any relevant further action(s) to protect an athlete's rights.
NIL Landscape: How Athletes Can Stay Protected
The landscape of NIL rights is complex and continually evolving. In early 2025, the NCAA's settlement with the states of Tennessee, New York, Florida, Virginia, and Washington D.C., permanently enjoined certain NIL recruiting restrictions to allow prospective and transferring student-athletes to discuss, negotiate, and sign commercial NIL deals without penalty, signaling a shift in how NIL opportunities are managed within the NCAA. Since then, the final approval of the House settlement ushered in a new framework allowing schools to provide direct financial benefits to Division I student athletes and established clearer rules governing third-party NIL agreements, which included new reporting requirements for Division I student-athletes.
Engaging with experienced legal counsel can help you navigate these changes, ensuring that athletes' NIL rights are protected and leveraged effectively. Whether an athlete is looking for legal assistance in registering a trademark, negotiating contracts, or enforcing their NIL rights, please contact the authors of this article or any member of Venable's Sports Law Group. And subscribe to Chalk Talk here.