Name, image, and likeness (“NIL”) is the personal intellectual property of a student athlete. But NIL doesn’t give a student athlete permission to be themselves – they had that long before their NIL rights existed. Rather, NIL rights give a student athlete the ability to prevent someone else from using his or her name, image, or likeness without authorization.[1]
So how does an advertiser get the ability to use an individual’s NIL? Through a license agreement or an agreement to let an advertiser license (use) specific NIL.
But license agreements are tricky, and pitfalls can be hidden among many pages. Student athletes should seek the advice of a lawyer to help them spot – and avoid – those costly traps.
Every word in a license is important. One extra word can turn an NIL license from an opportunity for a student athlete to make money into the only opportunity. That word: “exclusive.” While all legal terms have room for interpretation, an exclusive license can be the only license.
An exclusive license can mean “only” one advertiser has rights, it can be limited by the advertised products or market (or not at all), by geographic range, or by time – all of which have different monetary values and for which the student athlete should be compensated accordingly.
Michael Jordan reportedly knows this well. According to published sources, Mr. Jordan once turned down a $100 million deal for his name and likeness and a two-hour appearance.[2] So does Hugh Hefner – as part of a merger involving Playboy Enterprises, Inc. – Mr. Hefner provided only a “non-exclusive” license to his name, portrait, voice, signature, and likeness and that license was only useable “subject to [Mr. Hefner’s] approval.”[3]
A license agreement has many other potential issues. It could require public appearances. It could conflict with university or state law. It could jeopardize NCAA or high school eligibility. It could inhibit the ability of a student athlete to license upon joining a professional team or a professional players’ association. Student athletes should seek professional advice when considering these issues.
The lawyers of the Howard Legal Group have expertise in intellectual property matters and have worked with major universities for enforcing and licensing their intellectual property. If you are interested in learning more about the benefits and risks of a NIL agreement, please contact us for a free consultation.
[1] Brown v. Ames, 201 F.3d 654, 657 (5th Cir. 2000).
[2] https://www.insider.com/michael-jordan-turned-down-100-million-offer-2020-5
[3] https://www.sec.gov/Archives/edgar/data/1072341/000119312511012963/dex99d8.htm
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