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New NIL Opportunities for Student-Athletes Require Diligent Review

Client Alert
July 8, 2021

On June 28, 2021, Governor Mike DeWine signed Executive Order 2021-10D, “Establishing the Duties of Colleges and Universities as to Name, Image, and Likeness Compensation of Student-Athletes.” The Executive Order was motivated by the passage of similar name, image, and likeness (“NIL”) regulations in seventeen (17) other states; Ohio followed suit to avoid a significant competitive disadvantage in attracting student-athletes to the state.

The Executive Order permits NIL compensation which opens a financial industry for student-athletes to leverage – but with these new opportunities comes new significant concerns. Student-athletes should be cognizant of common contract clauses that, if overlooked, could hold serious future ramifications.

Does your NIL contract contain commercially unreasonable terms?

NIL sponsorship and licensing agreements will pose unique considerations and applications as the industry continues to expand. Below are some of the potential contractual provisions that should garner special attention and legal review before signing:

  • Term of Agreement – specifies the duration of the agreement (e.g. how long the agreement will be in effect)
  • Termination Rights – details each party’s ability to terminate the agreement
  • Non-Competition – may require the student-athlete only negotiates with or partners with a specific company in a specified geographic area for a period of time (which may include a tail period that extends beyond the agreement’s term)
  • Exclusivity, Non-Solicitation, and/or Non-Circumvention – may bar the student-athlete from negotiating with a potential partner after the duration of a specific agreement
  • License Details – may allow a company permission to use a student athlete’s NIL for an indefinite period of time and an unbounded area with unfettered discretion
  • Confidentiality – may restrict the student-athlete from sharing or otherwise using any information received or provided under the agreement, which may include compensation terms
  • Severability – allows for the removal of provisions that are later deemed preempted or disallowed by statute, while the rest of the agreement remains intact
  • Force Majeure – allows for nonperformance from a party if an act of God or other event outside the control of a party precludes the performance of the contract’s terms, which could include an injury to the student-athlete.

Please contact one of the following BMD Corporate Attorneys for assistance on any NIL matters, including review of the underlying NIL agreement:

Business & Corporate LawMichael D De MatteisNick KaramNIL Contract
Client Alert

EEOC’s New “Know Your Rights” Poster to Replace “EEO is the Law” Poster

October 26, 2022Under federal law, covered employers are required to post a notice in the workplace describing federal antidiscrimination laws. The Equal Employment Opportunity Commission (EEOC) prepares the mandatory posters summarizing antidiscrimination laws and explaining how employees and applicants can file a complaint if they believe they have experienced job discrimination. On October 19, 2022, the EEOC released a new poster: “Know Your Rights: Workplace Discrimination is Illegal,” replacing the “EEO is the Law” poster. Employers must now use the poster captioned as “Know Your Rights: Workplace Discrimination is Illegal – Revised 10/20/22.” Employers may be reprimanded for failure to appropriately and compliantly post the updated poster.Client Alert

FAQs:  Administrative Fees Under Medicare

September 14, 2022Late patients, last-minute cancellations, and difficulty in collecting fees are all common complaints from our healthcare clients.  As such, it is no wonder that a common topic among our healthcare clients revolves around what administrative fees can be charged to patients and related issues.Blog Post, Client Alert

Community Banks: Collaboration, not isolation, is the key to protecting/ enhancing the cannabis business you pioneered

August 26, 2022As we prepare for the plenary session of the informal institutional cannabis lenders community announced in my previous article, I am pleased to advise that participants now include 5 of the best-known dedicated loan funds; a select group of commercial banks ranging in size from single state community banks to mid-size regionals making cannabis loans into the mid-8 figures; and, a syndicator of credit union cannabis loans.Client Alert

Inflation Reduction Act: Healthcare Provisions

August 22, 2022On August 16, 2022, President Joe Biden signed into law the Inflation Reduction Act (the “Act”), a landmark climate, healthcare, and tax bill. Though the Act’s climate provisions have received most of the media attention, the healthcare aspects of the Act present some of the most significant changes to the American healthcare system since the passage of the Affordable Care Act.Client Alert

The Current State of Assignment of Benefits Litigation in Florida

August 5, 2022On May 25, 2022, Florida lawmakers approved property insurance reforms that remove attorney’s fees, with respect to assignment of benefits (“AOB”) property insurance litigation. One-way attorney’s fees are a longstanding problem in Florida and the reforms come at a time when AOB litigation increasingly affects homeowners in a negative way.
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