NCAA Name, Image, and Likeness Scouting Report
By Cam Van
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 a 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 video games must make royalty payments to the athletes for 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 student-athletes should keep in mind.
Know Your States’ Laws
As mentioned above, different states’ NIL laws can differ wildly. When considering which school to attend, recruits should understand each state’s NIL laws they are considering, since a provision can hamper an athlete’s earning potential. For example, in Texas, all agents must be admitted to the Texas state bar - so if a student has a trusted family member or friend who they want as an agent, Texas might limit their options.
Get an Agent
While different states may have specific rules regarding who a student-athlete can have as their 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 excel 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 best 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 followship. Athletes should utilize social platforms 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.
The landscape will no doubt continue to change when the NCAA puts in a permanent policy, and when they do, we’ll update you here so that you can maximize your NIL potential.
