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The NCAA has traditionally restricted college athletes from accepting any endorsements or compensation related to their participation in college sports. But less than a month after California enacted the Fair Pay to Play Act, which will prohibit the NCAA from preventing college athletes in the state from profiting off their commercial identities starting in 2023, the NCAA’s board voted unanimously to allow students across the country to benefit from the use of their “names, images, or likenesses.”

Name, Image, and Likeness

The right to profit from the commercial use of one’s name, image, and likeness, referred to as the right of publicity, prevents others from exploiting one’s identity without consent. Arguably, the NCAA’s previous policies interfered with athletes’ rights of publicity—while the NCAA and its member schools profited from college athletes’ names, images, and likenesses, the athletes received no compensation.


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The New England Patriots recently released star receiver Antonio Brown following allegations of past misconduct, which Brown denies. Setting aside instances in which such clauses are prohibited by unions, Brown’s termination highlights two issues that should be carefully considered when drafting any morals clause – what constitutes a morals violation and timing.

How Bad Is Bad?

Assuming no prohibitions from relevant guilds, sports teams, studios, advertisers, and other employers may negotiate with talent over what conduct qualifies as grounds for termination on morals grounds. Some behaviors, such as sexual assault, criminal fraud, or acts of violence, are so clearly over the line that they are generally non-negotiable and always included. Defining exactly what additional conduct counts as “bad behavior” for this purpose is often highly contentious, however, and can involve many categories of behavior, with qualifiers relating to, among other things, actual damage to the employer. For instance, both parties can agree that an employee may be terminated for cause based on “bad behavior,” as defined in the contract. But what happens when the company/studio/employer seeks to terminate a relationship on morals grounds, but the talent disputes the truth of the allegations? To avoid uncertainty, the parties may wish to define what level of investigation or proof is required before a morals termination is triggered.


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