Student Athlete or Influencer? Maybe both.
The term "Influencer" is well established in our vernacular because let's face it, Influencers are literally everywhere. The Federal Trade Commission ("FTC"), defines an Influencer as someone who endorses products or services through social media or other platforms and has issued a plethora of rules and regulations related to both Influencers and the brands that hire them (FTC Endorsement Guides: https://www.ecfr.gov/current/title-16/chapter-I/subchapter-B/part-255). Influencers are a powerful, prevalent and effective tool for brands, advertisers, and agencies alike. Even though we use the term generically to refer to anyone on social media with any kind of following and "influence", in truth influencers and their influence, aren't all the same.
NIL is another term we have become familiar with and tend to use generically. It stands for "Name, Image, Likeness". NIL is not a new term and NIL rights come in many shapes and sizes. In fact, regulation of the use of an individual's NIL has been around for a long time. These rights are often covered under state laws, known as "rights of publicity". The first right of publicity law was enacted in New York in 1903 and today, only 22 states have specific statutes (there are also some common law rights).
The term "NIL" has bubbled to the top most recently because of the National Collegiate Athletic Association ("NCAA")'s recent decision to allow athletes to profit from their NIL. It includes everything from an athlete's face or name on a jersey to a recognizable feature like a signature catchphrase or iconic silhouette. While not all athletes are considered "Influencers", and certainly not all Influencers are athletes, there is significant crossover. Prior to mid-2021, the NCAA imposed strict amateurism rules that limited student-athletes' ability to earn money based on their athletic status. The intent was to preserve the amateur status of these athletes and it meant that student athletes were prohibited from receiving compensation for the use of their NIL. With new NCAA guidelines however, student-athletes can now receive compensation for endorsements, appearances, social media promotions, and other NIL opportunities, much like a traditional Influencer.
When a college athlete, professional influencer, or celebrity enters into an NIL deal, they may be leveraging their right of publicity to endorse products or services. Once the deal involves the promotion of goods to the public, the FTC's rules on endorsements apply the same as they would to a more traditional "influencer". Any student athlete will potentially need to understand and navigate not just NCAA rules, but the FTC rules, individual states rights of publicity, platform rules..... and the constantly changing nature of all of it.
Regardless of the type of NIL deal, a few things remain constant:
Contractual Clarity is Imperative. Any contract between a brand and an athlete must outline as specifically as possible how the athlete (or influencer)'s identity will be used such as what images, videos, or likenesses will be featured, and for how long. Include clauses that mandate compliance by all the parties under all the applicable laws and rules.
Be Consistent and Authentic. From a marketing standpoint, an athlete or influencer wants to preserve authenticity to keep their fans' trust. Leveraging one's NIL in a way that aligns with personal values is important; athletes may also need to take into consideration other contractual obligations or requirements.
Home Team or Away? Know your jurisdiction(s). Some states have explicit statutes governing the right of publicity, while others rely on court-developed common law. This patchwork of laws means an NIL deal that is valid in one state might encounter legal challenges in another. As college athletics and influencers become increasingly global (with deals spanning multiple states or countries), it's essential to consider how each jurisdiction handles right of publicity claims and other legal challenges. The FTC rules apply to U.S. promotions, but international regulations might also come into play with a global audience.
It's still the wild wild west out there (which by the way, is how we lawyers talked about the world of Influencers just a few short years ago). Make sure you consult legal professionals early – whether you're an athlete or Influencer, a corporate sponsor, a brand, an advertising agency or collective, or a guardian. And perhaps most importantly, engage a team of individuals who are well-versed in the relevant regulations. This helps everyone involved understand and uphold their obligations and maximize the benefits of any deal. You can expect plenty of change in this space as the world of college athletics and influencer marketing continues to grow.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
