In June 2021, a landmark decision by the US Supreme Court in NCAA v. Alston cleared the path for college athletes to financially profit from their name, image, and likeness (NIL) rights, a move deemed long overdue.
However, a more recent legal battle, Panini America v. Fanatics, potentially jeopardizes the NIL rights of professional athletes. The lawsuit accuses the allocation of long-term, exclusive trading card licensing as monopolistic behavior, contravening the Sherman and Clayton Antitrust Acts.
Professional athletes should, rightfully, control and profit from their NIL due to the considerable time, effort, and skill involved in reaching celebrity status. This control should extend to determining their representation in commercial products, a right that should not be inhibited by the courts purely because exclusive licensing might impact the pricing and quality of trading cards.
Athletes have long defended this right. Barry Bonds, for instance, withdrew from MLB Players Association’s group licensing program in 2003, excluding himself from trading card and video game products that relied on procuring rights through the program, starting in 2004.
This right of publicity—control over a person’s NIL—was first recognized in Haelan Laboratories v. Topps Chewing Gum. The court stated, “A man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture.”
This case current pending, Panini America Inc. v. Fanatics Inc., is an example of how antitrust and intellectual property law can sometimes conflict. On one hand, antitrust law aims to promote competition by prohibiting certain monopolies; intellectual property rights, on the other, grant the holder with certain exclusive rights, effectively giving them a monopoly.
Ultimately, the article concludes that it would be unfair for the court to curtail professional athletes’ rights of publicity by invalidating their exclusive contracts, as these athletes have spent significant time and energy to develop skills that can yield fame and financial rewards.
Athletes and celebrities alike should be able to control the use of their NIL. Courts should not use the Sherman and Clayton Antitrust Acts to deprive them of this right.