Name, image, and likeness (“NIL”) is both bigger and smaller than most people think. Sure, some top college athletes are inking deals for millions of dollars, but most people don’t realize the sheer number of student athletes (with names you might never hear on TV) that are also signing deals for substantial amounts of money. These deals may not be for millions of dollars, but they’re oftentimes enough to buy a new car or house. That’s not an exaggeration. The “small” deals you don’t hear about can be extremely lucrative.
So, what does a student athlete have to lose? If a company or collective puts a contract in front of a college student and offers to pay them six figures for one year during which they have to post on Instagram 10 times and participate in 1 live interview, is there any legitimate reason not to sign? The short answer is: It depends on the contract.
There could be a lot of reasons not to sign any given contract (or at least to try to negotiate some of the terms in the contract). In my opinion, one of the biggest issues is in the name itself: “Name, image, and likeness.” That phrase is almost synonymous with “reputation.” Companies are paying student athletes to use their reputations (whether as good athletes, social media influencers, etc.) to promote whatever it is they’re trying to promote. That’s all fine and dandy, especially when the big checks start rolling in, but what happens when a company says the student athlete has to post something the athlete doesn’t agree with? Or what if a company requires the student athlete to promote an affiliated company that isn’t morally aligned with the student athlete? Can the student athlete refuse to harm his/her own reputation without financial penalty? Answer: It depends on the contract.
Another key issue is ownership of intellectual property. Who owns the Instagram post, the video uploaded on TikTok, or the vlog uploaded to YouTube? What if the student athlete wants to take it down because the post is getting some negative attention online? Can they take it down without financial penalty? Answer: It depends on the contract.
Exclusivity and non-competition are also key issues that student athletes should be keenly aware of. If they sign a contract with Company A, can they turn around and sign another contract with Company B the next day? Answer: It depends on the contract. This issue can be critically important if a student athlete is expecting to sign with multiple companies (which is often the case). But even if the student athlete doesn’t have multiple contracts lined up, keeping the door open for more potential contracts could prove extremely valuable if the athlete has a break-out performance or season.
These are just a few of the big-ticket issues that student athletes need to be aware of when reviewing and negotiating an NIL contract. There are plenty more.
As stated above, it’s important to have protections in place to protect one’s name, image, and likeness. It’s not always easy to say “no” or ask to change certain terms of a contract when a company is trying to hand you the keys to a brand new BMW (there are actual NIL agreements giving student athletes brand new cars as part of their payment). But it might be worth stepping back for a minute and considering some of these issues. Negotiating the terms of an NIL contract can help a student athlete significantly increase their earnings potential. It can also help protect their reputation.
