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University of Miami Law Review

Abstract

This Article analyzes the relationship between private property and the government’s power to expropriate it. When it comes to protecting private property from governmental expropriation, our Constitution is conflicted. On the one hand, the right to private property is a foundational principle that defines the American spirit, our history, and our culture. Yet, on the other hand, the Founders adopted the government’s superior authority over private property, that is, eminent domain, for public purpose and with just compensation, via the Takings Clause of the Fifth Amendment. This “private property conundrum” requires us to explore the limits of eminent domain relative to a person’s private property right in themselves, that is, their “persona.”
This Article advances the thesis that every person in America possesses a right to the attributes of themselves or “persona,” which is protected against governmental exploitation. It develops that seminal, normative thesis through three tasks: (1) it presents a contemporary conflict between the private property rights of National Collegiate Athletic Association (“NCAA”) athletes and state governments that operate NCAA schools; (2) it argues that eminent domain and the Takings Clause of the Fifth Amendment should not apply to persona rights, particularly name, image, and likeness (“NIL”); and (3) it proposes a model code solution that society, policymakers, and government should adopt to prohibit the use of eminent domain to exploit NIL and other attributes of persona. Consequently, this Article concludes that States that operate NCAA member schools have wrongfully taken, and continue to wrongfully take, student athletes’ right to their persona.

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