Avoiding Landmines in the Collegiate Name, Image and Likeness Roll-Out

By Deborah Gubernick

On the heels of the United States Supreme Court’s decision against the NCAA last month, the NCAA passed an interim name, image and likeness (“NIL”) policy to allow athletes the opportunity to strike deals using their NIL for commercial gain. This update led to a flurry of activity, including “marketing managers” (NCAA athletes cannot have agents) locking in and announcing their representation of top talent as clients; businesses inquiring on how to quickly secure NCAA athletes as brand representatives; and athletes trying to enter contracts – all while simply trying to see the money flow in before school starts again in the fall! Easier said than done. This evolving area is fraught with landmines. 

Whether you are a marketing manager, business or athlete, you may want to first start by checking the university’s NIL policy – usually available online through the athletics department/compliance department. Consider checking for regulations regarding reporting requirements, permitted versus unpermitted uses of university logos, facilities, and more. Some universities have very detailed NIL policies – including specific steps that must be taken for reporting each NIL agreement; some universities have less specific policies. Consider checking the state NIL laws as well. Consider the type of activity the athlete would be participating in for pay and consider the product the athlete would be endorsing. Does either run contrary to any of the university’s values? Does the activity run contrary to NCAA regulations? Some SEC athletes are reportedly poised to make significant sums of money this year based on deals they have already entered. However, other reports suggest that the majority of athletes may make nominal sums. In any event, the NCAA NIL policy forbids pay-for-play. Athlete eligibility is finite. Understand and abide by state, NCAA and university NIL policies to ensure the athlete eligibility is not cut short. Avoid landmines by being informed before entering into any NIL agreement.