Home > Journals > WMLR > Vol. 66 (2024-2025) > Iss. 2 (2024)
William & Mary Law Review
Abstract
As an entirely new and developing area of the law, NIL [name, image, and likeness] further complicates the existing struggles in determining how NCAA student-athletes should be viewed by the law in the employment context. Such a determination is crucial to understanding the extent of student-athletes’ First Amendment protections. Even as NIL drives the law further in the direction of student-athletes becoming employees of the university, student-athletes are still undeniably enrolled students of the university, and scholastic achievement is still a primary consideration for college athletics.
This unique relationship between student-athletes and their institutions necessitates an entirely new standard for First Amendment analysis. This Note will craft that standard and create a workable framework to protect student-athletes from broad, discretionary restrictions on the expressive content of their NIL activity. Part I will provide relevant background on where the NIL landscape currently stands, the trends in current and prospective legislation, and the reality that student-athletes are destined to become public employees under the law. In consideration of this reality, Part II will synthesize existing doctrine for student speech and public employee speech to create a new “Student-Athlete Standard” for analyzing the First Amendment protections that should be afforded to NIL deals. This Standard will afford student-athletes the First Amendment protections they deserve as they inevitably approach public employee status. In turn, Part III will apply this Standard to existing NIL policies, as well as proposed federal policies, to both illustrate the constitutional concerns of NIL law as it stands and conceptualize alterations to potentially avoid these concerns.
This abstract has been taken from the author's introduction.