For most of the history of collegiate athletics in the United States, student athletes were forbidden to engage in any form of business related to their status as an athlete.
Then, in 2021, a district court ruling that the collegiate athletics’ governing body violated the Sherman Antitrust Act by limiting education-related compensation to student athletes completely changed the world of college athletics. State laws protecting a student athlete’s right to profit off of their “name, image and likeness,” or NIL, proliferated almost immediately.
Student athletes could finally profit off of their own talent — but not without some notable exceptions.
The three most common restrictions on NIL deals, which are imposed by both states and the NCAA member schools, include a restriction on NIL deals that conflict with a university’s existing sponsorship agreements; a restriction on deals with “vice” industries, such as alcohol, tobacco and pornography companies; and a restriction on deals that go against the “institutional values” of a student athlete’s university.
Just as members of any given organization are not protected by the First Amendment right to free speech, student athletes who represent a university are not allowed to use their name, image or likeness to endorse anything they please. This is not surprising.
What is surprising, and indeed concerning, about the current patchwork of state and university NIL laws is that they have the very real potential to violate the First Amendment free speech protections afforded to all private people within the United States, regardless of their affiliations.
In a journal article published in December of 2021, authors Sam Ehrlich and Neal Ternes argue that these restrictions on NIL are “overbroad” and have a real potential to violate free speech rights provided under the First Amendment, including protections for political speech.
The authors offer a hypothetical scenario in which a student athlete accepts an offer to appear in a political advertisement against what they regard as Israeli aggression and in support of Palestine. What happens when the university finds that this particular NIL deal conflicts with its “institutional values?”
Under a state law such as Mississippi’s, which states that athletes are prohibited from entering into any deals that are “reasonably considered to be inconsistent” with the institution, “negatively impact” it or “reflects adversely” on the institution or its athletic values, the university in question might prohibit it.
The fact that universities across the country can currently call upon these “institutional values” clauses in state law and university policy and infringe upon student speech should be concerning, especially given that these restrictions will affect the speech of students at postsecondary institutions — a place where many argue that speech codes should arguably be particularly weak.
Ironically, the NCAA and officials at member universities insist upon using the term “student athlete” to describe university students who participate in collegiate athletics. And yet, as soon as student athletes were allowed to profit off of their talents, states and universities acted preemptively to restrict their speech rights — rights that are prerequisite to healthy, productive university learning environments.
Courts generally disapprove of these preemptive restrictions on free speech, commonly referred to as “prior restraint.” They also disapprove of speech laws that exhibit “overbreadth,” or the broad restriction of speech that might limit protected as well as unprotected forms of speech.
These precedents mean that restrictions on speech in NIL laws could very well be found unconstitutional in future legal action.
But until then, student athletes may feel afraid of crossing the line and engage in self-censorship due to university administrators and state legislators who are afraid of what student athletes might have to say for themselves.