Demystifying the new NCAA Name, Image, and Likeness Policy and Best Practices

By Cameron Van, Esq

By now, much noise has been made of the NCAA’s new interim Name, Image, and Likeness policy released on June 30, 2021, as well as the Supreme Court Ruling that led to it. As a result of these policies, blockbuster headlines of student-athletes signing massive endorsement deals are a weekly occurrence. Below is a policy overview, and some suggestions on how to navigate the opaque, increasingly chartered waters from a former NCAA athlete and current lawyer.

The Basics

First, a little table setting. The terms Name, Image, and Likeness (“NIL”) combine to be the legal concept known as “right to publicity.” The right to publicity is commonly used as a defense against the misuse of a person’s name, image, and likeness. These new provisions mean that athletes can begin to profit from their own NIL, including but not limited to their autograph, developing their own clothing lines, promoting various products and services, personal appearances, and much more.

Key Parts of the NIL Policy

While the interim policy is neither long nor very specific, it does give some guidance to athletes and institutions on how to move forward:

• Individuals can engage in NIL activities that are consistent with the law of the state; where the school is located. Colleges and universities may be a resource for state law questions;
• College athletes who attend a school in a state without an NIL law can engage in this type of activity without violating NCAA rules related to name, image, and likeness;
• Individuals can use a professional services provider for NIL activities; and
• Student-athletes should report NIL activities consistent with state law or school and conference requirements to their school.

The NCAA was clear to ban any outright pay-for-play deals or initiatives. Moreover, the NCAA has made this the blanket policy. However, different states have differing NIL legislations, which may add another wrinkle in the recruiting process for schools and athletes alike. For example, Texas’ legislation prohibits athletes from signing with agents who are not licensed to practice law in Texas. Meanwhile, in Pennsylvania, individuals who sell trading cards, jerseys, and videogames must make royalty payments to the athletes’ or their NIL usage. There are even states like Alabama that require institutions to make $10,000 deposits per year in an annuity fund for student-athletes who declare that they will not receive compensation for use of their NIL. With these in mind, below are some key aspects that athletes should focus on, and some separate provisions that institutions should ensure compliance with.

Student-Athletes

Student-athletes largely must navigate these new, untested, murky waters on their own. Here are some tips to demystify the NIL landscape.

Know Your States’ Laws

As mentioned above, some states' NIL laws differ only slightly, and others have unique, specific provisions that may impact a student athletes’ ability to earn income from their NIL. When considering which school to attend, recruits should understand each state’s NIL laws they are considering, as a provision could make or break an athlete’s decision. For example, if a student has a trusted family member or friend as their agent, but said family member would have to be admitted to the state bar association as an attorney in order to be an agent for them like in Texas, said student should be sure to go to a school within a state that would allow for that.

Get an Agent

While different states may have specific rules regarding who a student-athlete can have as an agent, states do allow some sort of partnership between students and professional service providers who may act as a beacon to guide through the waters. Agents can take the reins on NIL-related opportunities, negotiations, and other particulars so the athlete can focus on their studies and performing in their sport. Student-athletes should do their research and fully vet any agent before entering into a partnership deal with an agency or professional service provider to ensure they are trustworthy and have the student athlete’s interests in mind.

Grow your Brand

While generally football and basketball are the biggest fish in NCAA revenue, social media levels the playing field, allowing athletes to leverage their unique talents and personality in order to gain a strong following. Athletes should utilize social media to build their personal brand in a way that sets them apart by being themselves. Once building their brand, athletes may forever be associated with the partnerships they make, so they should tread purposefully in any partnership agreement.

Institutions

The NCAA policy hands major responsibility of shaping their own NIL rules upon institutions. While the NCAA NIL policies are generalized, Institutions are expected to have more specific rules that both align with their values and their respective state legislations. Since schools are the main sources of oversight, they should be sure to ensure that any NIL dealings:

· Minimize legal exposure for student-athletes and the institution;

· Create a system to vet agents and other marketing services;

· Protect athletes with reporting requirements, fair market value calculations, and educational programs

· Protect any intellectual property

Importantly, many states have specific provisions in their NIL legislation that institutions educate their athletes on financial literacy and how best to navigate the NIL landscape, so institutions should create learning programs or work with third parties who monitor the moving target to ensure compliance and best practices.

Teamwork Makes The Dream Work

Athletes and Institutions should work as a team to ensure the best outcomes for both parties involved, creating a partnership that can create lasting positive change for all involved. The NCAA may never be the same again. It’s about time.

Have a specific question on NIL policy or strategy-related questions? Reach out to author directly: Cam@witholympia.com