With the major college revenue-raising seasons concluded—football, basketball, and to a lesser extent hockey—the transfer portals for college athletes are swinging wide open. Money from Name, Image & Likeness (NIL) deals and other forms of outside compensation are flowing.
The unlimited transfer door for basketball players opened Wednesday upon the conclusion of the March Madness championship games, which extended into April this year. Hockey’s window opens later this month, and football has been in progress for weeks. These features have created a situation that President Trump has correctly called a “mess” and has set out to try to tidy up.
At a conclave of college professional sports administrators, coaches, owners, and politicians summoned to the White House last month, the President lamented the state of college athletics. He told the assembled multitude—notably absent of any athletes or their advocates—what many of them fear: that the largesse to athletes and their families will “destroy” college sports.
The President pledged to issue a “very all-encompassing” Executive Order that will “solve every problem,” amplifying a milder dictate issued last summer. However, regressing to uncertainty, he added, “we will get sued [is] the only thing I know for sure.” While the promised one-week turnaround did not materialize, he did eventually announce his “Save College Sports” initiative—his 245th Executive Order this term—setting up five committees to study the new “landscape” of college sports.
Executive Edict
It is a commendable effort, though marred by the paucity of current athletes, agents, and Democratic officeholders in the room. As they say in the President’s native New York City regarding the inclusion of the opposition: “Fuggetaboutit.” They are persona non grata at the White House these days.
The President followed up last week with another decree calling for limiting transfers to one per five-year career, agent registration, and the protection of funding for women’s and Olympic sports. As he forecast, this is likely to inspire litigation. The prospect of litigation is an inescapable truth because it was lawsuits that precipitated the current “mess” and are likely to be at the heart of any fix.
It is an opportune moment to recall that the litigation that bred the “problem” the President promises to “solve” had its roots here in Minnesota jurisprudence. The irony is that the concept of NIL was born and bred in a ruling by a federal judge in Minneapolis some 56 years ago.
Alston Action
The U.S. Supreme Court’s action five years ago in Alston v. NCAA established the right of college athletes to be compensated for their NIL. The Court held that restrictions on compensation constituted an impermissible antitrust violation under the Sherman Act.
Coupled with the settlement of the House v. NCAA class action lawsuit last year—unleashing about $21.5 million annually for major athletic departments, including the University of Minnesota—the result has been a “Frankenstein-like” apparatus in the eyes of many fans. Yet, this current malaise is traceable to a matter that arose right here.
Uhlaender Undertaking
The lineage of NIL is traceable to a watershed case decided by U.S. District Court Judge Philip Neville in Minneapolis in 1970. The case was brought on behalf of the nascent Major League Baseball Players Association, which selected Minnesota Twins centerfielder Ted Uhlaender as its proxy to sue a board game company using players’ identities without compensation.
In Uhlaender v. Henricksen, Judge Neville held that the manufacturer must compensate players under the “right of publicity.” He recognized that players have a compensable right to be paid for the use of their identity, explaining that “games and published statistics [are] property subject to legal protection.”
Strikingly, Judge Neville’s 1970 terminology mirrored the modern concept of NIL, stating an athlete has a legally protectable aspect in the “identity embodied in his name, likeness, statistics, and other personal characteristics.”
Barely before the ink on the Alston case was dry, a Minnesota high school athlete became one of the first to cash in. Hercy Miller, a standout at Minnehaha Academy, signed a $2 million NIL deal before even matriculating at Tennessee State. Miller, the son of rapper Master P, eventually moved through four different college stops—a peripatetic career that perfectly illustrates the portal era.
Spanky Suits
The “right of publicity” was extended two decades later by Judge James Rosenbaum in a lawsuit brought by former child star George McFarland, better known as “Spanky” from the Little Rascals.
In the 1991 case of McFarland v. E&K Corp., the judge regarded the unauthorized use of the “Spanky” character on a St. Paul restaurant menu as “unjust enrichment.” The judge declared that a “celebrity’s identity… is the ‘fruit of his labor’ and becomes a type of property.” (Conflict alert: This writer successfully represented “Spanky” in these and other right of publicity matters.)
The concept was further solidified in 1997 when the Minnesota Supreme Court, in Lake v. Walmart Stores, Inc., recognized a common law right of privacy including the “misappropriation” of identity for commercial purposes.
Waiting for Godot
NIL is here to stay. While athletes and agents cash in, they can look back and admire how Minnesota jurisprudence set the wheels in motion for the movement that the President now promises to “solve.”
Skeptics may recall the words of Samuel Beckett’s classic 1952 play Waiting for Godot: “Nothing happens, nobody comes, nobody goes, it’s awful.” But at the presidential level, something is finally happening. Whether it materializes into a solution remains to be seen. One thing is certain: nothing would have happened had it not been for that lawsuit here in Minneapolis 56 years ago.
