NIL Pointers for Colleges and Universities

Following up on last week’s release of updated guidance from the NCAA on “permissible” and “impermissible” actions, here are some general pointers for colleges and universities to revisit when it comes to Name, Image and Likeness matters:

• Universities should adopt NIL rules that strike the right balance between protecting the university’s interests in avoiding affiliation with “vice” industries and avoiding conflicts with school sponsors on the one hand, while not unduly restricting athletes’ abilities to enter into NIL deals on the other hand.
• Universities’ NIL policies should address booster collective activities and what the athletics staff are allowed to do and cannot do with respect to the relationships with individual boosters as well as booster collectives and representatives of outside brands looking to work with the school’s student athletes.
• Universities should also clearly communicate their NIL rules and any applicable state NIL law to athletes as well as staff that may interact with athletes or booster collectives. Furthermore, institutions should provide easy-to-use (and understand) forms for students to disclose NIL deals ahead of execution and to request permission to use any school trademarks, logos or insignias in NIL activities.
• While existing trademark law will protect universities against unauthorized use of the institution’s trademarks, logos, or insignias in student athletes’ NIL activities, it will be better to address use of school intellectual property in NIL activities before it happens, not after. At the very least, use of the institution’s trademarks, logos, and insignias should not be permitted in NIL activities without prior written approval, and universities should explicitly communicate this to their student athletes ahead of time.
• Universities should also adopt an internal process to identify contracts with university sponsors as well as the length and breadth of those contracts. Schools should also identify competitors of the institution’s sponsors and determine which ones the school would consider restricting student athletes’ NIL activities with, and how or to what extent.