By: Josh Goldberg, Esq. and Carter Gaines *
Name, image, and likeness (NIL) has allowed student-athletes to capitalize on their publicity rights in an era where social media influencers are often a brand’s spokesperson of choice.
Student-athletes are particularly enticing as brand partners. As digital natives growing up with Vine, Instagram, and now TikTok, many student-athletes are fluent across social media and understand how to leverage it in a way that feels natural and authentic. Many products and services that are targeted directly towards 18–24-year-olds are a perfect brand fit for student-athletes to endorse since student-athletes are the same age and relatable to the target demographic. Student-athletes who attend “Power Five” universities can have massive followings and given the localized nature of college sports, could potentially provide brands with a foothold in a market that professional athletes would miss.
Additionally, student-athletes with massive social followings, such as Louisiana State University gymnast Livvy Dunne, create the opportunity for brands to work with athletes outside of the typical revenue sports. Given this new era of college athletics, it is unsurprising that both brands and athletes have been willing to throw their hat into the ring. To do so is not without risk , however. The space is ripe with legal grey areas that could be consequential to athletes and universities. This article explores steps student-athletes should take prior to engaging in name, image, and likeness deals.
Step One: Know the Policy
Student-athletes should familiarize themselves with the NCAA’s policies as well as any applicable state law and University-specific rules.
The NCAA’s interim policy provided the following guidance to student-athletes looking to partake in NIL deals:
Individuals can engage in NIL activities that are consistent with the law of the state where the school is located. 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. Colleges and universities are responsible for determining whether those activities are consistent with state law.
Individuals can use a professional service provider for NIL activities.
Student-athletes should report NIL activities consistent with state law and conference requirements to their school.
A November 2021 question-and-answer document distributed by the NCAA clarified that schools may not use NIL transactions to compensate student-athletes for athletics participation, achievement, or as an improper inducement. Additionally, the Q&A states that schools should not dictate how student-athletes use their compensation.
In May 2022, the NCAA Division I Board of Directors released additional guidance relating to the NIL interim policy, stating that institutional coaches and staff may not organize, facilitate or arrange a meeting between a booster or NIL entity (e.g., collective) and a prospective student-athlete (e.g., a high school athlete or potential transfer student-athlete). Notably, this provision did not extend into similar institutional involvement with enrolled student-athletes. Further, an NIL agreement between a prospective student-athlete and a booster/NIL entity may not be guaranteed or promised, contingent on initial or continuing enrollment, at a particular institution. The same goes for current student-athletes – an NIL deal cannot be contingent on enrollment decisions, athletic performance or achievements, or membership on a team.
In October 2022, the NCAA provided updated guidance focused on permissible and impermissible institutional interaction with third-party NIL collectives, rights-holders, and third-party agents.
Athletics department staff members are prohibited from representing a prospective or enrolled student-athlete in marketing engagements. However, schools may inform student-athletes about potential NIL opportunities and can work with a service provider to administer a marketplace (e.g Opendorse, MarketPryce).
Schools may also solicit donors to provide funds to collectives and other NIL entities, provided the schools do not request that those funds be directed to a specific sport or student-athlete.
One of the more surprising points about the October 2022 guidance is that the NCAA said schools cannot, under the interim policy, provide free services (graphic designers, tax preparation or contract review) to student-athletes unless those services are available to the general student body, nor can schools offer equipment (cameras, graphics software or computers) to student-athletes to support NIL activities, unless that equipment is also available to the general student body.
Prior to NIL being a thing , many schools had already been offering these services, or similar, exclusively to student-athletes without NCAA or public backlash.
Step Two: Know What’s Off Limits
All student-athletes interested in monetizing their name, image, and likeness must understand their university’s specific policies. Student-athletes should clarify with their university when considering signing a NIL deal with an unaffiliated sponsor of the school (ex. Nike school, but potential Adidas deal) as some schools or state laws prohibit entering a deal with a competing brand that has an existing partnership with the school.
It is critical that student-athletes check their school’s specific policies and understand what is potentially prohibited. Certain schools and states prohibit partnerships with companies from the following sectors:
Gambling
Sports betting
Controlled substances
Marijuana and Cannabis Derivatives
Tobacco
Alcohol
Electronic nicotine products or delivery systems
Performance enhancing supplements
Adult entertainment
Weapons
Drug paraphernalia
Substances banned by the NCAA
Illegal services
Additionally, student-athletes are prohibited from endorsing any other product or service that is reasonably considered to be inconsistent with the values or mission of a postsecondary educational institution or that negatively impacts, or reflects adversely, on a postsecondary education institution or its athletic programs. Student-athletes should err on the side of caution and avoid working with a brand in a questionable category. In addition to the categorical prohibitions described above, it is important to note the guidelines around what is impermissible for student-athletes engaging in NIL activities.
For example, universities cannot be involved in identifying, selecting, arranging, or providing payment for professional service providers related to NIL activities. Additionally, student-athletes are not permitted to use their school’s intellectual property including uniforms, trademarks, logos, or symbols to either implicitly or expressly endorse a third-party or product without prior written approval of their school’s Office of Trademarks and Licensing. Student-athletes must not engage in NIL activities during the course of team activities, which are defined as competitions, practices, and team gatherings and meetings. Additionally, NIL activities must not interfere with academic obligations.
Step Three: Keep Long-Term Goals in Mind
Brands are particular about the endorsement history of potential spokespeople and would likely be hesitant to work with someone who endorsed a competitor, or a brand category, that is in opposition to their services. While it could be tempting to sign deals with a number of different companies, student-athletes need to think through the optics of associating with each potential partner. This is especially true if they become a professional athlete, as oversaturating your brand portfolio could decrease the likelihood of securing a more lucrative endorsement opportunity down the road.
With the advent of NIL for student-athletes, it is undoubtedly an exciting time for college athletics. Frankly, student-athletes should be able to capitalize on the passion surrounding college sports while they are representing their universities. Through familiarizing themselves with their school’s policy, understanding what brand categories are off-limits, and keeping their long-term goals in mind, student-athletes should be able to navigate NIL deals successfully.
*Not an attorney; Carter Gaines is a 2L at Emory University School of Law and a law clerk with Greenspoon Marder’s Entertainment & Sports Law practice. Mr. Gaines has worked as a talent agent, connecting celebrity and influencer talent with consumer brands.
