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A Guide to Collegiate Athlete Name, Image and Likeness Agreements: Making them Fair and Balanced

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A Guide to Collegiate Athlete Name, Image and Likeness Agreements: Making them Fair and Balanced

For over a century, the National Collegiate Athletic Association (“NCAA”) prohibited student athletes from being compensated for the use of their name, image and likeness (“NIL”). Long standing NCAA bylaws characterizing student athletes as amateurs barred these students from fully capitalizing on their own talent, athleticism and labor. Over the years, student athletes grew increasingly critical of the NCAA, universities, and corporate structures that earned millions of dollars through marketing, promoting, and televising students’ NILs without payment to the athletes. Eventually, athlete criticism evolved into a movement wherein lawsuits, the enactment of new state laws, and revised NCAA bylaws now permit student athletes to be compensated for their NIL. This program will review the basics of NIL agreements and provide academic institutions with general factors to consider when student athletes, enrolled in their programs, are approached with NIL agreements. Legal professionals, coaches, and student athletes will benefit from the course’s historical discussion of NILs, summary of new state laws, and updated NCAA rules, as well as practice tips for avoiding predatory contract terms and managing the power imbalance between student athletes and entities seeking to profit from their NIL.

Transcript

- Hello, and welcome to a Guide to Collegiate Name, Image, and Likeness Agreements: Making these agreements fair and balanced. My name is Judie Saunders. I'm a member at Griesing Law, where I defend public and private entities, colleges, and universities against claims of discrimination and title IX evaluations, and where I am also a member of the confidential and sensitive investigations practice group. I have worked for several years as a civil and criminal litigator handling all aspects of the litigation process from everywhere from pleadings, discovery, negotiation, jury selection, the direct and cross of civilian and expert witnesses, and right up until closing arguments. The agenda for this course will cover six areas related to collegiate name, image, and likeness. First, we will discuss some key terms that will be used throughout our discussion, and that we should also be aware of when we think about name, image, and likeness. Next, we will talk about a brief history of the National Collegiate Association and their position on the compensation of student athletes. The third agenda item will be recent judicial decisions and how they have impacted college name, image, and likeness agreements. Our fourth item on the agenda will be the NCAA interim policies and how that has impacted student athlete, NIL, or name, image, and likeness agreement. Next as a fifth agenda item, how state and federal law have been implemented and enacted to regulate collegiate name, image, and likeness agreements. And finally, our sixth item that we will discuss are what college universities or academic institutions, and also student athletes should be aware of when considering negotiating and entering into name, image and likeness agreement. Let's begin by defining some of these terms. You heard me state when I was talking through our agenda, the National Collegiate Athletic Association, commonly referred to and known widely as the NCAA, the National Collegiate Athletic Association, formally known when it was first came about as the InterCollegiate Athletic Association was founded in 1906 or thereabouts and later renamed what we now the NCAA in 1910. This is a membership driven organization. Its members are comprised of colleges and universities. The members are divided into three divisions, Division 1, two and three. Today, the NCAA consists of approximately 1098 colleges and universities and includes approximately 102 athletic conferences. It is the oldest and largest college sport organization. This organization, the NCAA earns what some estimate to be in the billions for itself and its members, college and universities. This organization among its other functions works to address athlete safety. And as the NCAA has grown over the years from the early 1900 to today, it is widely recognized as an integral part of college sport, and is considered a distinguishing factor that validates the sports programs of many college athletic programs. And today to become a member is considered an honor. More than 4,600 college athletes are a part of the NCAA organization. Other items that we are gonna define are in particular, name, image, and likeness, or as I'll refer to throughout this NILs. At the very basic level an NIL to demystify this term and some of the notions around it, it is a contract. It's a contract that from whether you're considering it or the beginning should be begin at the very basis and the foundation in good faith. So what I mean by that is that these contracts, as any contracts, it should be approached, negotiated in good faith and feeder dealing. That means that all parties act on and act out of good faith when considering these contracts and entering into these deals. When we think about a contract, the components or elements of a contract under basic contract law and New York law, where I'm practicing and I practice I'm licensed in both New York and New Jersey and in the federal courts affiliated with in New York, a contract is formed when you have the following elements: An offer; two an acceptance; three, consideration; four, mutual ascent; and finally an intent by the parties to be bound. Now, all of these elements that I just stated have specific meetings interpretations, but if we just extract one of those elements and acceptance and acceptance under New York law, for example, will be what party accepts an offer when they have knowledge of and agree to the essential terms of the contract, and acceptance complies with the terms of the offer when it's clear, unambiguous and unequivocal. And I talked about, or I highlighted acceptance because that's gonna be important when we think about name, image and likeness agreements throughout our discussion, many student athletes will learn are now considering these, they have the ability to be compensated for their name, image and likeness. And it's important that at what other stage you are understanding or working with a professional, dealing with NILs that you understand the elements of a contract. Another term that will be used throughout our discussion are collectives. Collectives are standalone startup companies establish to create financial opportunities for athletes. An example of of a collective is Division Street. Division Street is a group of former Nike executives who came together in the wake of the deregulation and the relaxing of NCAA rules and policies as to name, image and likeness, and now are able to approach athletes and allow them to be hired and used for their services to get deals and promotions, endorsement contracts for athletes. So you'll often hear collectives used. So those are some of the terms and throughout there may be one or two other terms, but those are going to be the ones that we'll return to again and again. Let's turn now to our discussion of a brief history of the NCAA and its position or stance on compensating student athletes for their name, image, and likeness. Up until very recent 2021 and 2022, the NCAA has been very clear that it does not want, it prohibits student athletes from receiving compensation from their athletic performance. As early as 1906, the NCAA regulated intercollegiate amateur athletics. And it wasn't until in the mid to late 1940s that the NCAA passed sanity, a sanity code is what they referred to. And that was really the first written code to govern the recruiting practices in financial payments of student athletes. Eventually there was a time that the NCAA rules and bylaws evolved to where they would allow their members, colleges, and universities to provide scholarships to student athletes. And those scholarships would specifically cover such expenses as tuition fees, student athletes, room and board, and a few other incidental expenses. Over time, student athletes, advocates of students, parents and observers were noticing that the reluctancy and the prohibition of the NCAA to compensate its athletes beyond mere tuition, room and board was causing a problem. And that problem crystallized when their more information over time became available, and there was an understanding of the revenue and the earnings that were being brought in by the NCAA. By their own reporting, the organization's reporting and also reports by such sources as ESPN, recent figures for the NCAA include that in 2021, it generated more than 1.5 billion in revenue. And also that the majority of this revenue came in the form of contracts that the organization had with such television providers as CBS and Turner for the rights to the men's Division 1 basketball tournaments, what we so commonly know, and many fans wait for every march known as March Madness. A lot of this revenue as reported by the NCAA is returned back to colleges and universities, but as is noted, a majority or large bulk and the revenue is brought in through and student athletes would assert through their use of their talents, their labor, and also the promotion of their name, image in likeness. As such, there began to be attention where student athletes were wanting a more equitable distribution of the revenues being brought in by the colleges, by the universities and by the NCAA. There were frustrations that were expressed by many student athletes over the inequities amongst them, and the distinction that were made for student athletes that were not made for other types of students that were allowed to benefit from their labor while they were in school. For example, a business student could pitch an idea, start a business, become an entrepreneur and get revenue or earn off of their name, image, and likeness. If they were in a business program, it was not so for student athletes. Also musicians who are students could create a piece of art or a piece of music, and they could benefit from marketing and promoting themselves and their name, image, and likeness as they were students. And so you had student athletes saying why the distinction, what is the difference and how is it that the use of our skill and our talent can be used to increase the revenue, the notoriety, the name recognition, and so many times the brand of schools. And how is it that the student athletes are not allowed to benefit from their name, image and likeness beyond the scholarships. So many times there were examples that were cited also by students, by the news media, by observers as to just exactly how such sports competitions as March Madness would bring in increased enrollment on behalf of schools, when you think about in the area that I'm living in, in the Northeast and New Jersey, most recently St Pete's or St Peter's, which is located in Newark had an amazing success and run in March Madness. As a result, it was reported that the enrollment for incoming class and transfer students increased just off of the increased watching of the March Madness and the wins. So student athletes are saying, we are a valuable asset when you have the general public watching, the name gets out there, other schools in my area, Seton Hall, when you have these programs that are benefiting from the use of student athletes, they want to know why they aren't being compensated. And those are some of the arguments that we'll talk about later on that were asserted and advanced by student athletes in the court cases that we'll discuss. Turning now to our second item or rather our third item on our agenda, recent judicial decisions that have impacted collegiate IL agreements. Let's start in 1984. And this isn't to say that there wasn't other judicial action and other cases filed, but we'll just focus on for purposes of this course, some of the more recent court findings and holdings that have impacted NILs. So in 1984, in the case of the NCAA versus the Florida grievance of the university of Oklahoma, that was an instance where the College Football Association which was made up of some of the bigger, larger football program. So for example, the universities of Georgia and Oklahoma they challenged the NCAA's practice of seeking a multi-year television podcasting deal or plan because this College Football Association felt that it violated the Sherman Act. Now that's going to be important and a common theme throughout the judicial cases that we'll discuss. Many times, if you're hearing about judicial action, many observers will interpret the court holdings to mean that they directly spoke to, interpreted or ruled on college athletes being able to be compensated for their name, image, and likeness. When the opposite is true, and actually the different court cases that we'll discuss were actually discussing and ruling on the NCAA's use, or whether it violated antitrust laws as codified in the federal law, the Sherman Act. also discussed in this case, the Board of Regents was the claim that the plan by the NCAA, this multi-year televised broadcasting plan, its imposition of caps on the total number of games that can be broadcast each year was a violation of Antitrust Laws. The court ruled and found that the NCAA's plan did violate the Sherman Act. However, in the court's dicta, it stated that student athletes must not be paid. So here the court is actually agreeing with the NCAA stance against compensating student athletes. And it's based on the long held belief by the NCAA of amateurism, that college athletes are amateurs. They're not professionals and they should not be compensated as professionals. Instead they're amateurs and sport is secondary to what they're doing in college. That it's the college experience and that they're there to gain an education, build a future for later in life, and that they should be classified as amateurs. So in the Board of Regents, the court agreed with the NCAA finding that student athletes at the collegiate level were amateurs. Let's turn now to 2014 in the case of O'Bannon versus the National Collegiate Athletic Association. This case dealt with Ed O'Bannon, who was a former All-American basketball player at UCLA. What the issue in this case was, Mr. O'Bannon was depicted in a video game created by EA Sports. The video game depicted him in March Madness and it was called Match Madness 08, Mr. O'Bannon however, never consented to the use of his name, image, and likeness in the video game, and moreover was never compensated for the use of his NIL. As a result, Mr. O'Bannon filed a class action suit against the NCAA and other entities, other individuals claiming that the NCAA's prohibition on compensating student athletes for their use of their name, image likeness, again violated section one of the Sherman Act. At the district court or trial level, there was an agreement with Mr. O'Bannon that the NCAA's restrictions did violate Antitrust Laws. And that court went on to say that the NCAA and its member schools, they may not shall or must, but they may offer student athletes a full scholarship up to the cost of their attendance and also give them up to $5,000 per year of eligible deferment payments for the use of their name, image, and likeness. So here you see kind of the first indication that courts are willing to recognize the use and the compensation of student athletes for their NIL. However, when the case was appealed and was heard in the ninth circuit, it found that there was a need to reverse in part the district court's decision and what it reversed was the portion of the district court that permitted colleges to pay student athletes up to 5,000 per year for their name, image and likeness rights. The court did affirm that colleges could award full scholarships for student athletes. What happened? So in effect, what happened is that the ninth circuit in the O'Bannon case further, it affirmed, and it prohibited student athletes for receiving compensation for the use of their name, image, and likeness. The next case that we'll discuss after O'Bannon decision is in 2019, several student athletes filed numerous class action lawsuits against the NCAA, other defendants entities, their member schools, their member institutions and these class actions were consolidated in a case National Collegiate Athletic Association, athletic grant and aid cap, antitrust litigation. That was in 2019. The student athletes were asserting that a number of claims as I stated, these were a consolidated class action suits that were being followed by student athletes. So they asserted a number of different claims, including the NCAA was violating antitrust laws and also asserting their, what they believed to be their privilege or their right to receive compensation for their name, image, and likeness. Now the same judge that ruled in the Ed O'Bannon case also presided in this matter in 2019. the judge found that the NCAA's restriction on specifically non cash educated related benefits did violate antitrust laws. And then the court went on to say that the NCAA should permit student athletes to receive various types of benefits beyond just their scholarships. So for example, student athletes should be allowed to receive full scholarship. They also such things as science equipment, musical instruments, or other tangible costs that are associated with their academic studies, maybe a computer or the such. After this ruling in 2019 NCAA, they appealed. And so in 2021, you had the case of the National Collegiate Athletic Association versus Austin. This case was heard by the United States Supreme Court. And in that ruling, the Supreme Court found that the NCAA violated the the Sherman Act by limiting the education related benefits, schools may offer to student athletes. This decision in effect had the impact of now for the first time allowing students the opportunity to be compensated for their name, image, and likeness. And what you saw then was what some observers have called to be now a wild, wild west, a change in landscapes, a new ecosystem for student athletes to receive compensation for their NIL. Again, it's interesting to note that these court cases were ruling in particular about antitrust laws and the Sherman Act, but it opened the door now for the NCAA to be challenged, and for student athletes to receive compensation for their NIL. What then did the NCAA state laws, legislatures, federal laws do in response? Let's talk about that. The NCAA issued reluctantly, some would say they dragged their feet, interim policies. And the first one was in 2021. The NCAA announced an interim policy in relation to name, image, and likeness which allowed for individuals to engage in NIL activities that were consistent with state law, where the school was located. So college and universities could now be a resource, and they could allow for student athletes to be compensated. The NCAA for the most part, and this is my observation have kind of stepped back and said to the schools, their members, you have to allow your student athletes to be compensated as long as they are complying with state laws. The NCAA, this interim ruling also allowed for individuals to use professional service providers, attorneys, and agents when they want to enter into NIL activities. There's also an optional reporting for student athletes to report their NIL activities to the NCAA as long, and as it must be consistent with state law or school requirements. Some months later on May 9th, 2022, the NCAA issued an NIL policy for Division 1, name, image, and likeness, it was a guidance paper. And that stated it was to eliminate booster involvement and recruiting. This is one of those words that I'll define from you that we didn't discuss at the top of our discussion, that a booster in some, or in part is an individual, an independent agency, or even a corporate entity who was known by a member institution, or say an executive at an institution to be participating in, or be a member of an agency that promotes that institution's intercollegiate athletic program, or that a booster can assist or have assisted in providing benefits to an enrolled student athlete or their family member. So the policy that came down in may of 2022, the NCAA wanted to ensure that boosters are not involved in the recruitment process. What you're seeing with after the Austin decision and these NCAA interim policies on student compensation is now there is a relaxing and almost a near removal of the NCAA's prohibition on student compensation for NIL agreements. As we're just finishing up our topic of number four on our agenda, the interim policies that were enacted or handed down by the NCAA after the, a Austin decision, the July, 2021 interim policy, and then more recently the May 9, 2022 NIL policy let's turn now in our discussion to how state and federal laws are being enacted to regulate collegiate NIL agreements. in general, even before Austin in 2019, some states such as California enacted legislation to become one of the first states, California, and their enactment of the Fair Pay to Play Act or FPTP to allow student athletes to be compensated for their name, image, and likeness. And then other legislation proposed at the federal level, such as the Fairness in Collegiate Athletics Act, also the Collegiate Student Compensation Rights Act and the Student Athlete Level Playing Field Act, these were acts that were proposed at the federal level to allow for student athletes to be compensated. I attended a conference recently in Washington, DC that was hosted and sponsored by the Drake Group where Senator Corey Booker spoke on federal legislation that had the intent of protecting student athletes and allowing for their compensation to be more equitable for the use of their name, image, and likeness. So you see that even before the all Austin decision, and really when there was significant and repeated lawsuits being filed in the 2014 with the O'Bannon decision and the class action suit by student athletes in 2019 states began to take notice, state legislatures and federal legislators began to take notice. Alabama and Florida, Of course, those are states with huge athletic programs in the college football and college basketball they also step forward to enact name, image and likeness laws. There is the observation and the argument that some would say that the enactment of laws at state and federal level are not purely altruistic, and are not even done to secure, fair and balance and transparent agreements for the benefit of student athletes. In contrast, someone argue that these name, image and lightness agreements, or the relaxing of these rules and enactment of these laws were done by universities and the supporters of the universities within, for example, California, or Alabama, or George, Florida, or Georgia will use those examples. These laws were being passed as a tool for recruitment. For example, if you are a talented student athlete and you are being recruited heavily by large states or universities in states, such as California, Georgia, and Alabama, would you consider going to a state such as Maryland who may not have favorable NIL laws in place? No, you would probably consider a state such as Alabama, where you felt that you could be properly compensated for your name, image and likeness. So some would say that even those states have stepped up, so to speak, to enact laws that allow for student athletes to be compensated these laws, when you look at them may not be fully transparent and they may not be for the benefit of student athletes. And that's why we'll discuss toward the close, or when we discuss later on how to make these agreements more fair for student athletes and some of the provisions and contractual language that you'll want to be aware of. So what resulted after the court holdings in Austin in 2021 were different state laws and now NCAA policies, directing students, directing colleges and universities that you have to comply with your state laws. In fact, over the next year in 2021 to present nearly 40 states enacted or introduced NIL bills that schools and universities have to be aware of and with other. I stated that Alabama was one, California, Hawaii, there's also a bill introduced. Georgia, there was a bill signed into law, Colorado, Connecticut. Kansas passed a bill, Kentucky, Louisiana are just a few examples and also Maryland where there's legislation pending and at the time of this recording may have been passed. In Michigan, NIL bill was signed into law at the end of last year, excuse me, the pending and may have been signed at the time of this recording. So what do student athletes and their institutions, coaches, athletic departments, administrators need to be aware of when they think about fair and balance, transparent name, image, and likeness agreement. We just discussed under agenda item number five, that there exist the mandate that universities and colleges must comply with NCAA policies, hand it down after the Austin decision, the Supreme Court decision and the different states that enacted or introduced bills, federal laws that have been introduced. And it's led to some would say a mine field, how are academic institutions, how are student athletes to understand, to remain in compliance and to enter into these agreements? So that they're fair to student athletes. As I reminded you, and as I stated before these agreements, if you demystify them and you take away all of the glamor, the lights, the reports about the millions of dollars, the ability for athletes to earn and be aligned with big sports and the glamor that comes with endorsement when we get down at a granular level, we have to remember if you are an academic institution, if your student athlete that these are contracts. And if they're contracts there is a context for them and a way to understand, to ensure that they're fair and balanced. So let's begin with number six on our agenda, what college and universities and student athletes can do to educate and ensure fair and balance NIL agreements? The first thing before even entering into when an athlete is approached or solicited or a college is, or academic institution has an understanding that there's a collective that is approaching one of their student athletes they'll want to enter and think about these at step one, having the right mindset. A student athlete who is entering into an NIL must consider that what they're doing in addition to their responsibilities as an athlete, and as a student, they are now for intent and purposes becoming an entrepreneur. And what does any good entrepreneur need? A foundational, a good business entity, forming a business entity that can look like a LLC, a limit to liability corporation. It can take different forms. A partnership, but that's the consideration that should begin. You have to have a business mindset, and you have to think about it as a business. Many for example, I know some of these concepts are not new, now with the use of information through social media, many middle schoolers, I follow one student athlete, Zaya Cook, who is very active on the platform LinkedIn, and I found that to be interesting, many times you'll see athletes on TikTok or Instagram, she however has branched out into LinkedIn, which I think is a very interesting and true decision because she sees that there is value in being on a, what someone would say, a more professional website. And she promotes her camps there. From what I see is acting and approaching NIL agreement as a business. And that's the mindset that you have and need as step one when you want to have a more fair and balance. Approaching it as a business, aligning yourself with a brand or growing your brand and building a team, that's the next thing you'll need. You'll think about, is this a situation where I should employ consult with, or hire my own team of professionals? Or it could be one professional, it could be an attorney, it could be an accountant or some other trusted advisor. When student athletes are approached by different collectives, they're approached by maybe it's a group of businesses in a town. Here's an example, let's call the student athlete, Mary. And I've used this example before on a podcast that I host, and Mary is from a small town. She is recruited to a big university athletic program and is approached by local businesses. And the local businesses include, they decide that having Mary at the school will be great for them, great for the university and in turn, increase the overall revenues of the town. So the businesses come together, one of them may be a sub shop, another business next door, and they present to Mary an agreement, what kind of things should she think about? Well, as I said, first, Mary should think about entering this with the right mindset. She is a brand, she's an entrepreneur. And what, if any business formation forming an entity that she needs to do? So having the right mindset. That right mindset also includes thinking about and maintaining as a student athlete, the power to say no, academic institutions, you wanna educate your student athletes considering these agreements that they retain power and control before, during, and after the negotiations and the considerations of these contracts. If you enter from any other position, if you're thinking that maybe in Mary's case, I'm just lucky to be here, I'm so glad they picked me up, you are already positioning yourself in a disempowering mindset, and you may enter into an agreement that is not beneficial to you. What kind of things do you retain control over? Let me give you an example. What about the request to continue to control final approval or final say over how your image or your likeness will be used. Let's take, for example, maybe your voice will be used to promote different, ring tones, for example, do you get final approval of that? What about if your image will be used on merchandise? Do you get to sign off on that? Those are things that you may want to consider and retain control over when you're looking over these agreements. A balanced NIL agreement is a contract that does two things. It allows for the business to market and to receive exposure for their product and service. But it also has to compensate and align with the student athletes, brand their goals as an entrepreneur, and also fairly compensate them. So that's the overarching objective that I would add as part of this mindset that universities need to educate students about and students need to have when considering agreements that it has to align with them, it also has to be fair and allow for the business to do the marketing and promotion, but then fairly compensate all iterations of an athlete's name, image, and likeness. For agreements to be fair and balanced, it has to be based on transparent discussions, open, full discussions. This is not a time for the our student athletes to wonder and to feel as if they cannot ask questions, feel intimidated because maybe they're younger than the youngest individual in the room or feel that their question is stupid, this is not a time for that. No question you've heard it before is a silly question, especially when you're dealing with the fair compensation and the use of your name, image, and likeness, the discussions, as I said, have to be full, they have to be open. Each side, you should ask these products and services, when you're endorsing or working with these businesses, what is your objective? For lack of a better term, what is your end game? What is your goal of this agreement? That's what the student athlete should be asking. Student athletes in beginning to consider an NIL agreement. We should educate them on fully doing their own due diligence. And that due diligence can be done with collaborating or working with a professional, an attorney, an agency, and also the student athlete can do it on their own. I wish that I was as proficient early on, I am now, but as proficient as individuals born into a digital age, they can find so much about a company, and that's exactly what they should do. Be very methodical about it begin in their own file, keeping information on the company's website, their current products, the current individuals that they align themselves with, if there's any blog, looking at the company's social media accounts, that's just basic due diligence that should be done. Speaking with, if there's a question student athletes should ask to speak to other members of the company's staff to determine if this is a deal, an endorsement of a product or service that they want to enter into. Part of that due diligence should also consider whether in this more socially activist world, a student athlete wants to be aligned with a company that may not speak to their goal, the student's goals of such things through social issues as gender bias, LGBTQ stances, or maybe even if a student athlete is using their platform currently to do things such as dismantling institutional racism. It's important that part of the due diligence understands that company's stance on social issues. For example, I know of one student athlete who did not agree with the company's view on criminal justice reform and the imprisonment of African American men and women. And because of that, doing that due diligence and reading and understanding the student decided that they would not work with that company. One thing that student athletes can consider when they're entering or seeking out name, image, and likeness agreements is thinking about companies that are B-corps. B-corps have a history and a mission of being transparent, being aligned with the environment, being environmentally friendly, being promoting workers, immigrant rights, these B-corps, you can learn about them on bcorp.com. But if you are a student athlete that is into social causes, those are some of the corporations that you may look at. Or you can even ask if the company that you're considering, if they are where they hold values, similar to a B-Corp. Let's move down to some key provisions, this is going to be a high level discussion, this is not inclusive of every contract provision, or even the most essential ones, but key provisions that schools can educate their students on and student athletes can be aware of. We talked a little bit about retaining some rights and for example, retaining the right to approve the final product and how your name, image and likeness would be used. What about clauses concerning personal appearances? Again, you are a student athlete, you have commitments to obtain an education that you can market and use after school. You also have practice, you have to maintain your level of fitness, but what about personal appearances and what the contract could say about that? Does it require a specific number of personal appearances at public events? What about interviews or even photo shoots? You should understand the number and the type, and whether you have to travel for different geographical locations. How much notice do you have to give to a company if you cannot make an appearance? And will that be considered a breach if you miss a certain number of appearances? You'll think about the time commitment required for each appearance, and if that should be spelled out in your contract. What about if you have to travel and that, hey students, I was a student before, so you understand travel means one thing to a student, traveling even to a neighboring state and bearing that cost could be an issue. Who's going to pay for that travel? Who may even pay for the meals when you travel? And if there's a wardrobe or if there's, who will provide the wardrobe? Will it be there for you? Are you required to bring it? You're busy, you're a student, you want to find out those types of things, at least discussing them, and whether they should be a peer in the contract. Importantly, there should be a full discussion understanding, and then codified in writing regarding compensation and the language in the agreement, will the student athlete be compensated on a flat fee? Will there be royalties on sales? Will there be bonuses? Will the student athlete receive free goods and services? You want to have that discussed, talked about, and there to be an understanding to ask questions about that? What about clarification as to confidentiality, you may see language in there about confidentiality provisions. That's not unusual because companies may want to protect sensitive information that the parties may learn in their relationship together with the student athlete. What does the contract say about that and make sure there's an understanding. Termination provisions, you will see those within an IL agreement. They're key because things go wrong, they happen. Understanding and athletes, understanding of the termination provisions are important. What happens from the student's point of view is what we'll talk about for a second. What about if the company goes bankrupt becomes insolvent? What if they stop payment? What type of provisions are written into the agreement? What if the company breaches a part of the name, image, and likeness? What about a loss of reputation for the company? Is that grounds for the student athlete to terminate? The next clause or provision that you'll see and you think about is a morality clause. We think about these commonly as being one-sided with the finger pointed toward the student athlete. For example, if the student athlete is found using drugs or in a unsavory place, in a situation of domestic violence or receives a driving while intoxicated, this is maybe a breach of the morality clause, but I encourage student athletes and the institutions to think about this, the provisions or the language to be a mutual morality clause. What if the brand, or what if the company does something that's not aligned with the student's values? For example, one example that I use is coming out and taking a stance contrary to say the rights of different members in our community, LGBTQ, African Americans, other social issues, or the environment, social issues, education, incarceration, criminal justice. What if it speaks against the athletes values, can the language be written so that it's mutual and that there may be a morality clause that would allow for the athlete to find there being a breach and to terminate the contract based on a breach in the morality clause. So that's another provision that student athletes should consider when looking at contracts. An area that would require specialized counsel is when you think about intellectual property rights. And that's something that a student athlete should consider and speak with an attorney that specializes, as I said in IP rights and consider before entering into a name, image and likeness agreement, whether they have the student has preexisting IP rights. For example, companies often own their own patents, their trademarks, even their domain names, and they will hold onto those rights. Well, what if the student athlete has a reputation, maybe from middle school, from high school and has a name that can be trademarked, think about that using that, you don't want to enter into agreement where you haven't thought about it considered your IP rights, and you find that that portion of your name is being used without your approval. Have you secured those rights prior to entering into the contract? Also consider, and this is a little bit outside of the provisions, but you'll wanna consider, and it's worth noting as a footnote tax implications, tax consequences. I was looking at a social media posting from some athletes and it was done in one state and it turned out that because they were posting and generating revenue, they had traveled outside and they were posting that they had tax implications for the state that they were posting and generating revenue. And so you'll wanna think about that, that just came to my head and I want student athletes to be aware of that. It is important that student athletes are also aware of fully understand any exclusivity clauses that appear in their agreement. One type of exclusivity clause is an industry. These clauses would restrict a student athlete from doing such activities as promoting or even using as product, a similar product. What happens is that a company could restrict a student athlete from the actual, so for example, using a sports drink that they're promoting, using another sports drink, if it's within that industry, because that student athlete may have entered into a contract where they would only promote exclusively, that type of product in that industry. Also, you wanna think about whether your promotion, a student's promotion of one product may contradict what a school has an exclusivity product in. For example, if school uniforms are being sponsored by one sports apparel company, are you going to be in conflict with your contract if you are seen promoting or entering into agreement with another contradictory sports apparel or even wearing one? So think about, and consider the different aspects of the exclusivity of your name, image, and likeness agreement. As we wrap up our discussion on name, image, and likeness agreements, and ensuring that they are more fair and balanced, the important takeaways for student athletes, for their supporters for academic institutions are to remember these things: One, this is a new landscape, it is a new opportunity for athletes to be compensated. Part of one thing that I didn't state before is that a large part of the push by student athletes to receive fair compensation also comes under the lens or the paradigm, breaking up the paradigm that student athletes, especially those of African American descent, black and brown bodies who generated so much revenue for the NCAA for universities for the first time can be compensated, that was a large part of this conversation. We wanna ensure that with the, what I would call the deregulation of NIL and this landscape that they maintain fairness, that they allow for the full compensation. That's one takeaway that's important, and how do we do that? We do that by understanding the history and the perspectives and how we got to this point. We went over that when we discussed the NCAA, the inception, the court cases, and how it came up to 2020 with the Austin decision. And now ensuring as a third part and a third takeaway, ensuring that if you are an academic institution, if you are a student in a particular state, ensure that you understand the state laws, you comply with them, and that most importantly, that you are not intimidated when approached by or seeking these NIL agreements. But instead you look at these agreements for what they are, contracts, contracts being entered in two by you now who are not only a student athlete, but can think of it as a mindset, as an entrepreneur and using the protection, the protection of relying on your own due diligence and collaborating with either an attorney or another trusted professional to ask questions, to review, retain your rights, ensure that you retain position and control over those rights, understanding key provisions, and most importantly, knowing that you have the power to say no. And you now for the first time as a student athlete and supporters or academic institutions, that these students have the ability to be compensated now, and in the future for the use of their name, image, and likeness. It was a pleasure presenting this information to you. And if you have any questions, please reach out Judie Saunders. You can reach me at jsaundersgriesinglaw.com. I'm also available for questions and concerns and comments. I love your comments by phone. I can be reached at 674-7753, be well, and thank you.

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