Oklahoma State announced last week that it was going to place QR codes on the back of football players helmets for this season. The QR codes would link directly to OSU’s general NIL (Name, Image, & Likeness) fund to drive NIL contributions by viewers. Although the QR codes would not have been large enough for viewers or fans to scan on typical plays, fans were expected to interact with them during close-up shots and in postgame photos.[1] The QR codes on the helmets were part of a larger QR code campaign that placed them on the players’ bags, and on signage and coasters throughout the stadium.
It is easy to picture this strategy working. A player signs a fan’s shirt; the fan snaps the QR code to donate. The team has a game-winning final drive, and fans snap the QR code plastered around the stadium to donate on their way out. A player makes a great diving touchdown catch, and fans snap the QR code on his helmet in the hero shot to donate.
But, the NCAA took exception with the last example, saying the QR codes on helmets go too far. Under their interpretation of NCAA rules, the QR codes are prohibited on uniforms because they are “advertising and/or commercial marks.”[2] The NCAA bylaws permit only a commercial mark up to 2-1/4 square inches on each item of apparel worn by a player.[3] Oklahoma State disagrees with the interpretation of the rule. OSU argues that the QR code is an institutional decal, which would be permitted.
If viewed through trademark law, commercial marks can include school logos, but that is not the meaning of “commercial marks” when the bylaws are considered cohesively. There can be no dispute that “Oklahoma State” plastered across the uniform is advertising for the school, but schools are not prohibited from putting their own marks on the uniforms. Therefore, the NCAA bylaws are intended to prohibit paid advertising, where another entity is providing payment to have its mark included in the uniform. In this case, the QR code directs to the 501(c)(3) collective[4] that is officially recognized by OSU as existing for the benefit of its students, and where OSU is not receiving compensation to advertise these QR codes.
At the center of this issue is the status of the NCAA as a private association, which gives it broad power to regulate its member institutions. A private association’s rules are generally only reviewable by courts if the rules, regulations, or judgments of the association are in contravention to the laws of the land or in disregard of the charter or bylaws of the association, and failed to have rudimentary due process.[5] Even though NIL deals are legal, it would be difficult to challenge the NCAA’s judgment.
The NCAA said that allowing these NIL-linked QR codes on uniforms would require NCAA committees that manage the playing rules to take action to amend the rules.[6] But with schools trying innovative approaches to raising NIL money for their students, the NCAA’s inflexible rules may not be evolving fast enough to keep up.
As schools and athletes continue to explore the potential of the NIL-era, the NCAA will need to decide whether it wants to continue being inflexible or support the full potential of NIL. If it does not become more flexible, it may face internal turmoil over the rules, public pressure, and ultimately, legal challenges.
[1] https://okstate.com/news/2024/8/20/cowboy-football-oklahoma-state-to-wear-nil-fund-qr-codes-on-helmets-in-2024
[2] https://www.espn.com/college-football/story/_/id/41070382/ncaa-bars-oklahoma-state-placing-nil-linked-qr-codes-helmets
[3] NCAA Bylaw 12.5.4(b)
[4] https://www.pokeswithapurpose.com/
[5] Charles O. Finley & Co. v. Kuhn, 569 F.2d 527, 544 (7th Cir. 1978).
[6] https://www.deseret.com/sports/2024/09/03/qr-code-oklahoma-state-football-nil-deal/
Christopher Atwood (Class of 2025) is pursuing his J.D. at the University at Buffalo School of Law, with a concentration in Intellectual Property.
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