The Development of the Nascent Name, Image, and Likeness Industry
A Brief History, Current Issues, And Where We’re Headed
(this is Part 3 of a 4-part series examining the lead up to NIL policy reform, emerging trends and issues over the past year, where this is headed, and how NIL Network can help)
- Part 1: Creating The Perfect Storm
- Part 2: The Chaotic Rollout Of NIL Reform
- Part 3: First Year And The Ugly Realities Outside The Headlines
- Part 4: The Current Predicament: Cutting Through The Noise
Part 3: The First Year of NIL & The Ugly Reality
In my first year as an NIL Administrator, I’ve seen my fears of this new industry come true: There are bad actors in the space that are unapologetically taking advantage of every college athlete they can sign.
I’ve had way too many wide-eyed, excited young athletes bounce into my office to tell me about how “X agency reached out on Instagram and wants to represent ME and they said they’re going to get me soooo many NIL deals!” only to watch the smile leave their face as I educate them on VERY BASIC elements of fair contracts and ask to locate them in the contract they were given.
These basics, such as a clause outlining how to end the contract should it not go well, have been completely missing from a high percentage of NIL agreements.
And the best I can do is educate and hope they understand how serious I am when I recommend they get a trusted friend or family member, preferably someone with a legal background, to properly vet the contract for them. As an athletic department employee, my support is limited to education. I can’t vet a contract for an athlete (nor would I, I’m not an attorney) and I can’t tell them if an opportunity is a good deal.
What is likely the most consequential part of an NIL partnership, the negotiation of terms, NIL admins have to be hands-off.
However, the damning part is that many of these young adults don’t actually have anyone else to turn to. They can’t afford to hire legal representation. They don’t have an attorney friend or family member in their corner.
It gets increasingly bleak and disheartening when you look at the support around the country. In the first year, there are only around 30 athletic departments (out of 350 NCAA D1 programs) that have hired a person dedicated to NIL. While I’ll be the first to put my hand up and say that I’m limited in the support I can offer, at the very least, I’m someone they trust and can seek out for guidance.
What are athletes doing at schools without someone to turn to? How are they vetting these “NIL Agents” that want to represent them? What is their process when they’re given a contract to sign?
As Kristi Dosh noted from speaking to athletes at the first NIL summit, many reported attempting to vet their own contracts. Now, a basic understanding of contracts is a reasonable and fair expectation for these young adults. However, it terrifies me that it’s becoming a common practice (and/or the only viable option!) for college athletes to take on a task that people spend THREE YEARS learning in law school.
Unfortunately, the growing trend of businesses attempting to take advantage of college athletes during the “wild west” of NIL isn’t a surprise to anyone who follows professional sports. For decades, we’ve seen the headlines of pro athletes getting taken advantage of by those they hired (and trusted!) to support them.
The crazy part? Most professional organizations have protections in place to eradicate bad actors. For example, in order to become an NFL agent, their player’s association requires a post graduate degree, attendance at a two day seminar, successful completion of a background investigation, and a passing score on their exam.
And it still happens.
With NIL, the athletes are 4+ years younger, have limited support from their universities, and are priced out of seeking legal guidance. On top of that, there is no barrier to entry to starting an NIL business and getting in contact with college athletes is as easy as sending them a message on Instagram. Finally, most of these businesses are still in their first few years, making it impossible for anyone to verify their services or credibility.
This “Wild West” landscape is incredibly difficult for athletes, administrators, and honest service providers to safely navigate.