Know the Law: Legal Implications for Student Athletes and NIL

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Daniel T. Divis
Associate
Published: Union Leader
May 15, 2022
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Q: What does “NIL” mean, and how might it affect me or my child?

A: Simply put, NIL refers to one’s “Name, Image, and Likeness.” More particularly, the news surrounding the term refers to a student-athlete’s ability to profit off their NIL, which prior to last year, was largely prohibited by the NCAA.

In June of 2021, the U.S. Supreme Court opened the door for a student-athlete to profit off their NIL through its ruling in the case NCAA v. Alston. The Court held that the restrictions imposed upon NCAA member schools limiting the educational benefits they can provide to student-athletes violated anti-trust law. This decision opened the door for the NCAA to be challenged on its prohibition on student-athletes receiving compensation.

Following this decision, the NCAA’s Board of Directors voted to approve an interim NIL policy that permits all NCAA student-athletes to profit from their NIL. The interim policy will remain in effect until federal legislation or new NCAA rules are adopted, neither of which have happened yet.

Student-athletes can now engage in NIL activities that are consistent with the law of the state where the school is located, can use “professional services providers” for NIL activities, and schools and conferences can adopt their own policies to build upon the framework provided in the interim policy. This means state law plays an important role moving forward. As of the date of this article, Connecticut is the only state in the New England region that has passed such a law. For the most part then, student-athletes in the region should be aware of the NCAA interim policy, and, if applicable, rules set by the respective conferences they compete in.

Overall, however, student-athletes and parents alike should be cautious if they’re approached by a business or individual looking to compensate the student-athlete for his or her NIL and should consult a legal professional to review the terms of whatever agreement is being offered. While being asked to post on Instagram or another social media platform on behalf of the compensating person may seem harmless, the terms of any agreement signed might contain terms about exclusivity and confidentiality that could limit the student-athlete’s use of his or her NIL down the line.

All that said, it is an exciting time to be a student-athlete, and NIL law is sure to evolve in the years to come.

Know the Law is a bi-weekly column sponsored by McLane Middleton. Questions and ideas for future columns should be emailed to [email protected]. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.