Update on Structuring Student-Athlete NIL Agreements: Recent Decisions, Regulations, and Key Developments

A live 90-minute premium CLE video webinar with interactive Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Thursday, January 5, 2023

1:00pm-2:30pm EST, 10:00am-11:30am PST

or call 1-800-926-7926

This CLE course will guide counsel to companies, universities, and student-athletes on name, image, and likeness (NIL) agreements. The panel will discuss the recent U.S. Supreme Court decision and NCAA interim policy that opened the door to allow student-athletes to monetize their NIL. The panel will address key considerations for counsel and offer best practices for negotiating and structuring these agreements while ensuring student-athlete compliance with relevant regulations.

Description

In National Collegiate Athletic Association v. Alston (U.S. 2021), the Supreme Court in a unanimous decision struck down NCAA caps on education related benefits. Perhaps even more influential than the Court’s main holding was the concurrence by Justice Kavanaugh, criticizing the NCAA’s business model and stating that it “would be flatly illegal in almost any other industry.” While the landmark decision opened up financial opportunities for student-athletes, the decision also created potent regulatory and compliance challenges for potential sponsoring companies.

In response to the decision, the NCAA issued an interim policy addressing NIL, which went into effect on July 1, 2021. Under the interim policy, student-athletes can be compensated for endorsements without putting their NCAA eligibility at risk, but other forms of payment remain prohibited, such as payment to athletes by the schools for their performance. Since the issuing of the NCAA interim policy, there has been an influx of change at various levels of the college athletics industry, including significant state regulation of NIL.

Counsel for companies, universities, and athletes must keep in mind the various governing policies, including respective state law, NCAA procedures, and university regulations, with which the NIL relationships and agreements must comply. The last thing anyone wants to do is have an NIL agreement result in disqualification of the student-athlete from being able to perform.

With well over a year of NIL underway, listen as our authoritative panel examines these trailblazing issues and the latest developments in student-athlete NIL agreements. The panel will address the key considerations for counsel and offer best practices for negotiating and structuring these agreements while ensuring compliance with NCAA regulations, university policies, state laws, intellectual property rights, and other considerations.

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Outline

  1. How did we get here? Recent decisions and regulations
    1. NCAA v. Alston (U.S. 2021)
    2. Other court decisions
    3. NCAA interim NIL policies
    4. State law and regulations
    5. What has not changed?
  2. University policies
    1. What is and isn't the role of the university?
    2. What is not permitted?
    3. Interaction with athletes, agents, and businesses
    4. Issues involving usage rights, exclusivity, social media, etc.
    5. Denials and dispute resolution process
  3. Athlete considerations
    1. Disclosure to the school
    2. Impact on financial aid
    3. Source of endorsement
    4. Agency representation
    5. Considering university options based on NIL opportunities
  4. Intellectual property issues
    1. Athlete registration of their IP
    2. Evaluating the school's existing IP portfolio
    3. Decisions about making the school's IP and facilities available
    4. Royalty decisions
    5. The need to monitor and police IP use
  5. Business and branding considerations
    1. Risks presented by certain kinds of endorsements
    2. Morals clause
    3. Structuring compensation incentives
    4. Individual vs. team-wide opportunities
  6. Open discussion about best practices and practical takeaways

Benefits

The panel will review these and other key issues:

  • How has the playing field changed for student-athletes' ability to endorse goods and services?
  • What key considerations should companies keep in mind before entering into an NIL agreement with student-athletes?
  • What best practices should counsel employ when structuring student-athlete-involved NIL agreements?
  • What are the key intellectual property, branding, and legal/NCAA compliance issues facing student-athletes, universities, and businesses?

Faculty

Kastner, W. Drew
W. Drew Kastner

Partner; Co-Chair of the Intellectual Property Practice Group
Schnader Harrison Segal & Lewis

Mr. Kastner is an experienced intellectual property attorney whose practice includes handling trademark and copyright...  |  Read More

Yeung, Stephenie
Stephenie Wingyuen Yeung

Partner; Co-Chair of the Privacy and Data Security Practice Group
Schnader Harrison Segal & Lewis

Ms. Yeung leads the firm’s work in counseling clients on issues of data privacy, including preparing privacy...  |  Read More

Socolow, Brian
Brian R. Socolow

Partner; Co-Chair of Sports Practice
Loeb & Loeb

Mr. Socolow represents athletes, teams, event owners, media companies, equipment manufacturers and others in the sports...  |  Read More

Matias, Monica
Monica P. Matias

Attorney
Schnader Harrison Segal & Lewis

Ms. Matias is a member of the firm’s Sports Law Team and is actively involved in counseling both businesses and...  |  Read More

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