Why College Athletes Should Prepare for the Age of Name, Image, and Likeness

On January 20, U.S. District Court Judge Loretta C. Biggs granted New Orleans Pelicans star Zion Williamson partial judgment in her lawsuit against former marketer Gina Ford and her agency Prime Sports Marketing. Williamson, who played for Duke in the 2018-19 NCAA season and was the first pick in the 2019 NBA Draft, signed with Prime Sports in April 2019. Williamson then sued the agency in June 2019 to terminate his marketing agreement, claiming the contract was voidable under the North Carolina Uniform Athlete Agents Act, a law designed to protect college athletes. In response, Ford sued Williamson for $ 100 million for breach of contract, starting a multi-state legal battle.

The decision canceled Williamson’s contract with the Ford agency. Specifically, Biggs determined that Williamson was a student-athlete when he entered into the deal, was not otherwise declared permanently ineligible by the NCAA, and that Ford was not a certified agent in North Carolina. The contract also did not contain any legally required warnings regarding the hiring of an agent.

College athletes will soon be able to hire agents and monetize the use of their name, image and likeness during their college athletic career. The legislation proposed by the state on the subject could come into force as early as July. In early January, the NCAA announced that it was delaying its proposed rules on the matter due to factors, including recent communications with the US Department of Justice, which was concerned that the proposed rules were too restrictive and could violate antitrust laws. . Regardless of whether or not NCAA rule changes are announced before state law goes into effect, future legislation is unlikely to protect athletes from not understanding and negotiating agreements properly. Since most college athletes are not the NBA’s top draft picks with the ability to face significant legal disputes, college athletes must have access to resources that provide guidance for their future business endeavor.

Signing up with a marketing agency can be the first business decision a college athlete will make. While an agent’s relationships with brands, sponsors, and other athletes can influence decision-making, the deal with an agency requires careful consideration.

For example, Ford sued Williamson because his marketing contract could only be terminated “for cause” – that is, only in the event of significant issues such as material breaches, fraud or willful misconduct. . If Biggs had sided with Ford, Williamson would likely be stuck and unable to terminate his contract with Ford without paying substantial sums.

College athletes should also pay close attention to provisions in agent contracts that outline the scope of the relationship, agent responsibilities and authority, as well as exclusivity. Understanding how and when an agent gets paid is more than just looking at percentages. For example, “fee queues” entitle agents to commissions after the end of contracts. The length of a fee queue, and the agreements and introductions to which the fee queue applies, if it is excessive and wide, can impact future relationships with other agents, brands and sponsors.

Contracts with brands and sponsors will vary widely between college athletes, depending on factors such as fame and influence. If not carefully considered, some common contract terms can unreasonably eliminate additional income streams or impact an athlete’s personal brand. Brands and sponsors generally prohibit an athlete from working with their competitors. However, overly broad non-compete provisions should be adapted to accurately reflect the actual business, products or services of the brand or sponsor. It is essential to maintain reasonable control over how an athlete’s name, image or likeness is used to protect personal marks.

Provisions such as moral clauses, which attempt to compel athletes to adhere to specific standards of behavior so as not to discredit, despise or scandalize a brand or sponsor, are standard. Any ambiguous language in moral clauses should be clarified and broad language should be reduced. Moral clauses are generally unilateral in favor of a brand or a sponsor. However, the increasing activity on important social issues among athletes, has led, in some situations, to reciprocal moral clauses regarding the activity of the brand or sponsor or members of their management team.

Commercial activities can result in the creation of intellectual property rights, some of which must be owned by the athlete. Understanding the type of intellectual property created and how and where to protect it is essential. Valuable trademarks are created from an athlete’s name, distinctive logos or unique hashtags, slogans or slogans. Athletes must independently protect their ownership of these marks. Intellectual property protection helps to control and monetize the use of brands by third parties and to combat counterfeit and counterfeit products. Failure to properly register marks outside of the United States and attempting to recover such marks once registered by others in foreign countries can be time consuming and expensive.

Today, many students are also unique and successful content creators. For these students, registering copyright and protecting the value of their content will deter misuse and counterfeiting. Copyrights can protect photos, videos, and other creative content shared on social media.

To make the most of future business opportunities, college athletes will need adequate resources to ensure that business relationships are fair and equitable. Many colleges and universities currently offer financial literacy programs to student-athletes. It would be ideal for colleges and universities to expand existing programs to prepare student-athletes for the business aspects and deals associated with monetizing their name, image and likeness.

About Norma Wade

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