When one thinks of collegiate athletic dynasties, one might conjure up the image of Alabama’s football team under Coach Saban, Duke Men’s Basketball under Krzyzewski, or the UConn Women’s Basketball team under Gino. Respectfully, not many would think of a team from New Mexico. However, with the development of Name, Image, and Likeness (NIL) laws, people may start thinking of New Mexico or other non-typical states, as NIL laws are changing how collegiate athletic dynasties are formed.
As a recent National College Players Association ranking shows, New Mexico’s NIL laws rank the best in a myriad of factors measuring an athlete’s freedom and rights. For example, the state allows athletes the freedom to receive free food, shelter, medical expenses and insurance from third parties and allows athletic program boosters or booster clubs to pay athletes for the use of their name, image, and likeness. Whereas, Alabama, Illinois, and Mississippi tied for the worst ranking among states that have NIL laws.
With these and many other freedoms and advantages available to athletes in New Mexico, the recruitment of high-caliber student athletes may become easier. If students are able to make money or brand endorsements even before setting foot on campus, regardless of who the coaches are, the historic value of an athletic program is likely to take the back seat in the recruitment process.
What Exactly is NIL and How Are Students Leveraging It?
An NIL law is the umbrella term for any law dealing with an individual’s right of publicity. The right of publicity is an intellectual property right that protects against the misappropriation of a person’s name, likeness, or other indicia of personal identity—such as nickname, pseudonym, voice, signature, likeness, or photograph—for commercial benefit. For example, if someone wanted to run an ad that used a picture of my face, that person would have to get my permission first. I would likely allow this, for a certain price of course.
Ultimately, the right of publicity allows an individual to commercialize the use of their own name, image or persona while prohibiting others from doing so. For a more in-depth discussion of NIL laws check out this IP Bytes blog post by Alexandra Angyalosy.
Students are already capitalizing on the opportunities available to them. For instance, Bronny James, son of legendary basketball player Lebron James, is a freshman basketball player at the University of Southern California. Since joining the squad, he has amassed a $5.9 million NIL deal making him the highest-value athlete in the NIL era. Similarly, TikTok star and Louisiana State University gymnast, Olivia Dunne, has an estimated $3.5 million from brand deals and endorsements. Olivia and Bronny are just two examples of an entirely new kind of student-athlete, one that is driven to not only excel in their sport but to also ensure financial security while doing so.
Institutional Support as Demonstrated by The University of Louisville’s 502Circle
In 2022, Kentucky Governor Andy Beshear signed into law the state’s first NIL bill. Kentucky has two major athletic universities: the University of Louisville (UofL) and the University of Kentucky (UK). While UofL has had a historically good men’s basketball program, UK has excelled with 8 NCAA national championships and the record for NCAA all-time wins. The schools are, of course, rivals making it difficult for UofL fans to accept the greatness that is UK basketball (myself included).
Nonetheless, UofL has the potential to draw great recruits through use of 502 Circle, the University’s official NIL collective formed by loyal supporters. 502 Circle, like other NIL collectives, works to land NIL deals and sponsorships for its student-athletes including projects with bourbon distilleries and local businesses. The collective offers students an easy path to making connections with businesses rather than having to find the connections on their own.
502 Circle is an example of how UofL can stay competitive in the athletic recruiting market. Having an institutional mechanism through which students can take advantage of statutory rights afforded to them will surely be a draw for athletes when it comes to picking a school. Whether a college athletic program has ties to an organization such as 502 Circle will likely be a factor for consideration right along with how nice the athletic facilities are and whether or not the school has one’s desired major.
Some Legal Challenges to NIL
While NIL affords student-athletes wonderful monetization opportunities, it also brings some legal challenges. As previously mentioned, the right of publicity allows athletes to control what is done with their name, image, and likeness, but it does not extend to the name, image, and likeness of others. For example, if an athlete posts a photo from a game or match that also shows a fellow teammate or opposing player, the athlete who posts the image could be infringing on the other athletes’ right of publicity if the poster did so in a commercial context. Thus, the student-athlete is opening themselves up to potential litigation.
Additionally, college athletic programs have merchandise partnerships with particular suppliers which can run afoul of NIL brand partnerships. For example, if a student-athlete landed a sponsorship deal with Nike, but the school they play for has an agreement with Adidas, the student must be careful in how they fulfil their obligations under the deal. The student likely will be prohibited from wearing Nike’s trademarks while playing a game or acting within their capacity as a student-athlete for the school. A trademark is any word, symbol, or design that identifies a good or service in commerce. In this case, the Nike swoosh and Air Jordan logo are examples of Nike’s trademarks. While competing, the student-athlete would likely not be allowed to wear anything with these marks since the school has a deal with Adidas, Nike’s competitor. Improperly wearing a competitor’s mark could subject the school to breach of contract litigation and potentially the student-athlete.
Looking Ahead
Long before students might face these litigation challenges, NIL should be considered when choosing a college. Today, as student-athletes begin the recruitment process, one of the most important considerations will likely be whether or not the school is located within a state that has a comprehensive NIL law. The best way to navigate the process is to read up on what rights are available to students in the jurisdiction of the schools the athlete is looking at. It is also important to consider any language of limitation in a contract when licensing one’s name or likeness, as well as limitations on apparel deals or partnerships due to a university’s business deals.
Over the next several years it will be interesting to see which schools keep up with the NIL trends, like forming NIL collectives, and which do not. Though New Mexico has a great NIL law ranking, its schools haven’t taken great advantage of the state law to make noticeable changes in its athletic programs’ performance. It may be too early to tell the impact of the laws on individual schools’ performance, or opportunities for individual students. But I imagine in several years there could be a trend towards students going to New Mexico or other states with great NIL infrastructure.
If dynastic programs don’t keep up, or worse, if their state legislatures don’t, “Roll Tide!,” “War Eagle!”, and “Cheer, cheer for old Notre Dame” chants may be traded in for a “Hail to thee New Mexico!”
Meredith Wickenheiser
Senior Editor
Loyola University Chicago School of Law, J.D. 2025