As NIL continues to evolve, the line between historical use and commercial use of an athlete’s identity is becoming increasingly contested. The latest debate is sparked by Jayden Daniels, former quarterback and 2023 Heisman Trophy winner, sending a cease-and-desist letter to LSU, his alma mater, after the reissuance of Daniel’s No. 5 jersey to another player.
The Athletic spoke with Davis+Gilbert partner Jim Johnston for his perspective on the legal limits on how schools may continue using a former athlete’s name, image and likeness (NIL) for commercial purposes.
Jim emphasizes that an athlete’s right of publicity does not disappear when they leave a program. He explains that the right “remains whether someone is in high school, college, the pros or no longer competing at all,” underscoring that the key issue is what rights LSU was contractually granted and for how long.
He adds that the legality depends on context, noting that “it’s not what is used; it’s how it is being used.” He further explains that the cease‑and‑desist letter, though not a court order, puts LSU on notice — a fact that could become relevant if the dispute escalates.
The broader takeaway: NIL has expanded athletes’ control, but it has not eliminated the structural licensing rights universities have relied on for decades. As disputes like Daniels’ become more common, schools and athletes will need clearer contractual frameworks to avoid conflicts over merchandising, legacy rights, and post‑departure use.