rights of publicity

Florida Grants College Athletes Rights of Publicity

On June 12, 2020, Florida Governor Ron DeSantis signed a bill that will allow collegiate athletes in the State to profit from the use of their names, images, and likenesses – their “rights of publicity.” The bill, SB 646 (the “Law”), will go into effect on July 1, 2021. Florida is the latest state to pass legislation that allows collegiate athletes to profit from their rights of publicity. 

What does the new law allow?

New Rights for Athletes 

In signing the bill into Law, Governor DeSantis explained that the rationale behind the measure was simple fairness. DeSantis – who was captain of his baseball team at Yale University – remarked that it was unfair for third parties to profit off of collegiate athletes while the athletes themselves were prohibited from sharing in that benefit. While the Law grants athletes extensive rights of publicity, it also imposes various limitations, such as:

  • Athletes may only receive compensation from third parties that are unaffiliated with their schools;
  • Compensation must be commensurate with market value, and may not be provided in exchange for athletic performance or attendance at a particular institution;
  • Athletes must not be prevented from obtaining professional or legal representation by colleges or universities, and any attorney representing a Florida college athlete under this Law must be a member of the Florida State Bar; 
  • College athletes may not enter into representation contracts that extend beyond their time in college; and
  • Athletes who enter into contracts for the use of their names, images and/or likenesses must disclose those contracts to their respective colleges and universities. 

National Trend Toward Rights of Publicity

As other states pass and consider similar laws and regulations, it is clear that significant changes are coming for collegiate athletes and sports marketers. Florida lawmakers recognized this trend and acted to be among the first wave of states to enact legislation. In fact, although Florida was not the first state to pass legislation, it will be one of the first states where the new laws go into effect. For example, although California passed a similar law in 2019, that law will not go into effect until 2023 – almost 2 years after Florida’s collegiate athletes begin to benefit from Florida’s Law. 

As we have written previously, the National Collegiate Athletic Association (“NCAA”) has been slow to act on this issue. While the NCAA has begun to propose and enact new rules that would allow collegiate athletes to benefit from their rights of publicity, nationwide change is unlikely until the NCAA lobbies for Congressional action. The NCAA has begun petitioning Congress for federal legislation that would preempt states’ ability to issue regulations on this issue. Until such time as Congress acts to address the subject of collegiate rights of publicity, individual states will have to take the lead. Accordingly, in the near term, businesses should expect a patchwork of different laws across an increasing number of states. As always, businesses should work with experienced counsel to ensure compliance with new and changing state laws. If you need assistance developing or reviewing a sports marketing campaign, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

By David Klein

Attorney Advertising

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