September 12, 2021
We are certainly in the Wild West of the Name, Image, and Likeness era. It seems that every week, there is new NIL activity that further pushes the boundary of what is permissible. While at the moment there doesn’t appear to be any entity that is responsible for regulating this space, it is widely believed that there will be increased regulations sooner than later.
As a coach, keeping your athletes eligible is high on your priority list. One of the concerns that I’ve heard from coaches around the country is this:
My athletes don’t have to report anything NIL to me. How can I make sure that they aren’t jeopardizing their eligibility? Or potentially engaging in NIL activities that could bring sanctions to my whole team?
Well, the hard answer to that at the moment is you can’t. However, education is paramount to success in this new era of collegiate sports. Below are a few issues to make your athletes aware of as they take advantage of their NIL:
REPORTING OBLIGATIONS: When are your athletes required to report deals? Who do they report to? What is the process? What kind of details are they required to include? Do they need to wait for institutional approval prior to agreeing to the deal with the brand? What are the penalties for them not adhering to these guidelines? These details should be outlined in your institutional NIL policy but I encourage you to reiterate the importance to your athletes. With NIL still in its infancy, getting approval of deals prior to engaging protects your athletes and their eligibility.
INTERNATIONAL ATHLETES: While the NCAA interim policy doesn’t prevent international student-athletes from monetizing their NIL, their ability to do so will come down to what type of visa they’re on. At this time, most international SAs are being advised to not participate in NIL activities. If you have international athletes on your team that want to monetize their NIL, encourage them to visit your school’s International Student Affairs office to discuss.
However, there is a company that is actively working on getting the visa rules updated! NOCAP Sports is collaborating with immigration attorneys and immigration legal organizations, and soon will be finalizing their comments and recommendations for the U.S. Immigration Customs Enforcement (ICE). This month, NOCAP and their legal partners will be circulating a petition attached to our feedback for ICE.
PROHIBITED PARTNERSHIPS: What is in your state and/or institutional NIL policy about prohibited partnerships? Can your athletes partner with alcohol companies? Tobacco? CBD? Guns? Are they permitted to monetize their NIL on OnlyFans? Can they be a “Barstool Athlete” or does your institution consider Barstool to be too closely connected with gambling? Can they partner with a restaurant that serves alcohol? What separates a restaurant from a bar? The list goes on with questions that have come up in the past few months of NIL.
Even if your athletes are aware of the prohibited partnerships list, as you can see, there are a lot of gray areas. To keep your athletes eligible, encourage them to communicate early and often with the person that they report their NIL deals to. When in doubt, an NIL deal is not worth their eligibility!
USE OF INSTITUTIONAL IP: One of the first big storylines of NIL was the launch of the “Barstool Athlete”. While everyone was trying to wrap their heads around what that means and if it’s permissible, given that they are partially owned by Penn National Gambling, another issue popped up: On their Instagram account, they were highlighting their new “Barstool Athletes” and most student-athletes were wearing their uniform or school-issued gear. While this was definitely just an oversight by overzealous athletes, it was an immediate indication that institutions needed to decide if they will permit athletes to utilize the school’s intellectual property and if so, how and what the approval process should be.
What has your school said about the use of their Intellectual Property? Can an athlete wear your school’s logo in a sponsored Instagram post? If so, what is the approval process? Some institutions are permitting athletes to use the logo if they get written permission whereas others have come up with a licensing process. Can they wear school colors without a logo? Can they post videos in uniform on their TikTok if they have a creator fund? If your institution doesn’t have a process yet, I’d recommend educating your athletes on what intellectual property is, why it’s so valuable to your school, and the legal ramifications of them using it without permission.
In this new industry, we are all navigating the space together. As mentioned previously, taking a leadership role and opening up lines of communication with your athletes about NIL will help protect them and their eligibility.
Questions, comments, concerns? I’d love to chat NIL with you: michelle@nilnetwork.com