Name, Image, and Likeness FAQ
Can I benefit from my NIL if I am a high school student?
Florida high school students can not currently benefit financially from their name, image, and likeness. The Florida High School Athletic Association governs these rules, and presently there is no exception similar to the NCAA’s policy and the new Florida law.
Are NIL Contracts Exclusive?
There is nothing in the current NCAA policy or Florida law that prevents an athlete from entering into exclusive contracts. As such, an athlete could pigeon-hole themselves into working with only one company, which could limit their compensation. Alternatively, an athlete could demand that a company not use any other athlete. An attorney can help you review the contract, including any hidden terms, to ensure you are getting the best deal possible.
What if I violate a policy, rule, or law?
Reporting of all contracts are required, even if they are not in writing. Presently, international students are not permitted to profit off of their name, image, and likeness pursuant to Federal law. Taxes must be reported on all income consistent with IRS rules. Failure to abide by NCAA policies and school regulations could result in being declared ineligible, or worse (for example, forfeiture of games, etc). Punishments have not changed for violation of the rules. The best thing an athlete can do to protect themselves from non-compliance issues, is to seek the guidance of an attorney.
Will my NIL contracts be kept Confidential?
The NCAA NIL policy requires that contracts for compensation be disclosed to the post-secondary educational institution at which the athlete is enrolled. The purpose of this is to ensure compliance with NCAA rules such that eligibility is not affected. This limits the athlete’s ability to keep contracts confidential. Still, certain confidentiality provisions may be permissible. Contact at attorney to review options.
What can be done about a school’s Intellectual Property Rights?
An athlete may want to sell apparel as part of their effort to capitalize on the new NIL rules. While it would be tempting to sell a jersey with your name and number on it, it is not permitted. The school still owns the rights to a vast array of intellectual property, such as logos, names, typography, colors, sayings, etc. In order for an athlete to use this intellectual property in their pursuit of compensation, they will have to obtain licensing rights from the schools themselves if permitted by state law. This is yet another legal hurdle, but one that may be surmountable with the help of an attorney. Still, grey areas exist which will necessitate the assistance of an attorney.
Can I obtain a NIL contract if I am under 18?
Minors can still benefit from these new rules, but will have additional hurdles to jump through. In, Florida, such a minor will have to commence legal proceedings consistent with Florida Statute 743.08 and 743.09.
Do School’s have their own NIL Policies?
Many schools have already implemented NIL policies to assist their athletes in navigating this new terrain. Many of these policies are more restrictive than the NCAA policy. These policies reiterate the major points of the NCAA policy, including a prohibition of “pay-for-play” and inducements. Schools are also making it clear that athletes are not permitted to use university or athletic department related marks and logos, including uniforms. This includes wearing school related apparel while engaging in endorsements. In order to use such intellectual property, separate licensing agreements will need to be secured by the athletes. Many schools have also placed prohibitions on endorsements, such as the endorsement of alcohol, tobacco, e-cigarettes, steroids, gambling, illegal firearms, or sexually oriented businesses. Additionally, there may be prohibitions against entering into contracts with school partners, or entities with which the school does business.
What does the Florida NIL statute say?
Even though not all states have passed NIL laws, Florida has passed its own NIL law effective July 1, 2021. The statute permits compensation for the use of an athletes name, image, and likeness provided that compensation is equal to the market value of the name, image, and likeness. This compensation cannot be in exchange for athletic performance, or attendance at a particular school. An athlete cannot request fans send them money via venmo/cashapp/zelle/etc. The law permits an athlete to use an athlete agent or an attorney to represent him or her for the purpose of securing compensation. It even permits minors to contract and be compensated provided they follow Florida law in the approval of such contracts. Generally, an athlete cannot engage in a contract that conflicts with its school team contract, and must disclose the contract to his or her institution. The law also requires that post-secondary institutes provide financial skills workshops for its athletes. For more information on the Florida NIL law, contact an attorney at Bitman, O’Brien, & Morat.
What is the new NCAA Amateurism Policy?
The sands are shifting with respect to the rules of the game as the NCAA, schools, and athletes scramble to make sense of the new rules. The NCAA adopted an interim policy on June 30, 2021, that in effect, will permit athletes to profit from their name, image, and likeness. The policy provides certain guidelines such as:
- 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.
- Individuals can use a professional services provider for NIL activities (meaning an attorney or a licensed agent).
- College athletes who attend a school in a state without an NIL law can engage in NIL activity without violating NCAA rules related to name, image and likeness.
- State law and schools/conferences may impose reporting requirements.
During the interim NIL policy, the NCAA’s expectation is that schools and student-athletes will not use NIL transactions to compensate for athletic participation or achievement or as an improper inducement.
It is important to note that this policy is not retroactive. Any NIL activity before July 1, 2021 is still considered impermissible.
The NCAA will undoubtedly implement formal rules in the near future. An attorney is best suited to help you understand and traverse these new rules.
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