TikTok Ban Could Lead to Legal Action by College Athlete Influencers

The potential ban of TikTok by the U.S. government has the potential to affect the earnings of college athletes who have been using the platform to generate Name, Image, and Likeness (NIL) revenue. The likes of Olivia Dunne of LSU gymnastics and Haley and Hanna Cavinder of Miami women's basketball, who have millions of followers, risk losing significant income if the app is banned.

The Biden administration has issued an ultimatum to TikTok's owner, ByteDance, demanding that they divest their stakes or face a ban. ByteDance has dismissed the demand as ineffective, and TikTok has argued that a change in ownership would not impose any new restrictions on data flows or access.

If the ban goes through, it is likely to trigger litigation from ByteDance and TikTok, centered on First Amendment free speech and Fifth Amendment due process protections. Additionally, college athletes and other influencers may take legal action as plaintiffs.

Previously, TikTok and ByteDance sued former President Donald Trump and then-Commerce Secretary Wilbur Ross when Trump issued an executive order to block transactions between ByteDance and U.S. citizens and strip TikTok from U.S. app stores. ByteDance and TikTok Inc. argued that the ban would unlawfully burden the freedoms guaranteed by the First Amendment and compromise First Amendment protections of their software code, "an expressive means of communication." They also insisted that a prohibition would violate Fifth Amendment due process protections.

In addition to the legal challenges, the potential ban raises questions about the involvement of foreign-owned companies in U.S. sports and sports-adjacent industries. As these foreign investors, particularly those with close ties to their governments, play more prominent roles in these industries, more pushback on national security, human rights, and other important American interests can be expected.

The TikTok situation is unique, given that China has already banned TikTok, along with Facebook, Instagram, and some Google services. The U.S. government is now attempting to ban a communications platform to prevent government influence, which raises some ironies. Regardless, college athletes and other influencers who use TikTok to generate NIL earnings could be adversely affected if the ban goes ahead.