Student-Athlete Employee Speech

Abstract

In this Article, we discuss how student-athletes’ First Amendment free speech rights are likely to be impacted now that they may be allowed to be paid. We discuss proposals for student-athletes to be treated as employees and paid by their schools, and the potential for new rules allowing student-athletes to monetize their names, images, and likenesses (“NIL”). We conclude that while schools would have substantial leeway to regulate student-athlete speech if the students were employees, the schools will generally not be able to limit student-athlete speech otherwise. This means that schools will largely be unable to make rules governing how athletes make money if they are allowed to monetize their NIL. We also provide suggested best practices for schools that insist on exercising some measure of control over their student-athletes’ speech.