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California Passes Fair Pay to Play Act, Allowing College Student Athletes to Profit from Their Likeness

on Wednesday, 6 November 2019 in Technology & Intellectual Property Update: Arianna C. Goldstein, Editor

On September 30, 2019, California adopted the Fair Pay to Play Act, which will grant student athletes at California-based universities and colleges to profit off of their likeness and to hire agents to help them do so. 

Prior to the Fair Pay to Play Act, student athletes at California institutions which are members of the National Collegiate Athletic Association (NCAA) were prohibited from being paid in exchange for the use of their name, image, or likeness—for example, through endorsements.  There were a few notable exceptions to this prohibition—such as allowances for prize money in tennis competitions and cost-of-living stipends for student athletes in certain athletic conferences—but California’s new law is much broader in scope than any previously-existing exception. 

The Fair Pay to Play Act will prohibit the NCAA from penalizing student athletes at its member institutions for selling their name, image, or likeness, which will allow student athletes to market their name, image, and likeness to parties that may wish to develop a marketing campaign in conjunction with the student athlete’s personal attributes. 

Outside of the student-athlete context, under certain circumstances, individuals are entitled to protection for their personal attributes, and may hold a party liable for the use of their personal attributes when used for an exploitative purpose—such as a commercial use in advertising and promoting goods or services, or a non-commercial use if the individual’s identity is exploited in a way that personally benefits the party to be held liable. 

The law on this type of claim—frequently referred to as a right of publicity claim or a misappropriation of name or likeness claim—varies by state, and is very fact-dependent.

California’s Fair Pay to Play Act serves to add another complication to the already dense body of law pertaining to an individual’s right to publicity.  Lawmakers in dozens of other states have already introduced similar legislation or have indicated that they intend to do so in the near future.  Federal legislation has even been proposed by some private industry groups. 

On October 29, 2019, the NCAA’s Board of Governors voted to allow student athletes to benefit from the use of their name, image, and likeness.  While some industry commentators were concerned about what the response of the NCAA would be to legislation permitting student athletes attending California institutions to market their likeness—with some speculating that California institutions would be forced to leave the NCAA—the vote of the Board of Governors removes any doubt that, at present, student athletes at certain NCAA member institutions will soon have the opportunity to market their name, image, and likeness. 

Patrick M. Kennedy

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