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FAQ: NCAA Athlete’s Guide to Name, Image, and Likeness (“NIL”) Rights

September 10, 2021 | Michael Clouser | Shay Michael Beaudoin

What are the most common NIL deals that have been signed thus far?
While the news stories you hear or read about will most likely contain a major deal, the reality is that a vast majority of NIL agreements have been low-profile. Many of these include social media endeavors, such as posting an ad on Twitter or quick promotional video on Instagram. Additionally, locally owned establishments have become players in the NIL market, despite being somewhat overlooked. Never rule out the local area as an opportunity to strike a deal, especially if you are in a college town.

Is my university involved in the NIL deals?
Under the new NCAA policy, universities are prohibited from assisting the student athlete in obtaining NIL opportunities. While schools can offer guidance on whether the deal will violate NCAA rules or state law, they will not provide feedback about the contents of the deal itself. In other words, whether the student athlete is maximizing their NIL rights is in the student athlete’s sole judgment. It is imperative that student athletes adhere to the school’s individual policy and disclose any NIL deals to their compliance office in a timely manner.

What types of NIL deals are prohibited by university?
Florida law allows each university in the state to adopt their own set of NIL policies and many have already done so. Still, the concept about which deals are not allowed is generally the same. Most Florida schools have been consistent in striking down deals involving the promotion or selling of tobacco, marijuana, adult entertainment, or gambling / wagering. However, because the interim NCAA policy is silent, deals involving alcohol may or may not be prohibited. A school’s policy should be the first go-to for a student athlete while negotiating different types of NIL deals.

How long can my NIL deal extend for?
Florida Statutes §1006.74 prohibits an agreement from “extending beyond the athlete’s eligibility.” In other words, student athletes, especially upperclassmen, need to be aware of the length of the deal they are agreeing to and when their athletic eligibility ends. The consequences of not doing so could render the student athlete ineligible and cut their collegiate career short.

How does a university / team licensing contract interact with my individual NIL deal?
Under Florida law, a student athlete’s NIL deal cannot conflict with a term in a group licensing agreement. However, the statute is open for interpretation. Generally speaking, a student athlete is prohibited from using a competitor’s equipment during a game or an organized-team-activity (OTA) under a group licensing deal. However, the student athlete may be permitted to promote or endorse equipment of a competing equipment manufacturer through a NIL deal so long as they are not using the competitor’s equipment in a game or organized-team-activity (OTA). In other words, a student athlete may endorse a competing manufacturer’s equipment and use the equipment in other non-university events / promotions as part of a NIL deal even though there is a group licensing deal in effect.

What are some issues that have come up in NIL deals thus far?
While many athletes will want to wear the university’s logo or team gear in their endorsement of a NIL related deal, this has been somewhat problematic. Some schools have even taken issue with certain language used in promotional materials, such as referencing a team, conference, or sport in social media posts. Schools will provide some guidance on this issue, but, in any event, a student athlete must disclose before using the university logo or team mark in a NIL deal. However, it may not be so clear when a student athlete uses a team mark or conference logo. Given this lack of clarity, a student athlete should seek outside legal representation to adequately protect their legal rights.

Why should I seek representation from CSK if I am interested in contracting for a NIL deal?
CSK has 13 locations across the state of Florida and many of our clients are locally owned businesses. We’ve gained the trust and confidence of these clients by providing best-in-class legal services and serving as trusted advisors over many years. CSK transactional attorneys also have extensive knowledge of the NCAA’s interim NIL rules, Florida law, and each university’s individual policies. We are equipped to represent student athletes, talent agents, or companies looking for student athletes to enter into NIL deals.
For more information, contact CSK attorneys: Michael A. Clouser, Partner at michael.clouser@csklegal.com or Shay M. Beaudoin, Associate, at shay.beaudoin@csklegal.com


Our team is available to discuss the topics written here and ready to provide additional information contained in this article. Contact us for more information.


About the Attorney

Michael Clouser

Partner

Michael Clouser is a partner in the Jacksonville office and leads the firm’s Corporate and General Counsel Services group. He has spent the last twenty years working as corporate counsel within Fortune 500 companies in[...] Read more


Shay Michael Beaudoin

Associate

Shay Beaudoin is an associate in the firm's Fort Myers office. He grew up in Sarasota, FL. Shay received a Bachelors of Science Degree in Marketing from the University of Florida. He then attended the[...] Read more


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