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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

Advanced Practice Providers and Telemedicine Start-Up Surge

March 8, 2022Throughout the COVID-19 pandemic, we heard a lot about “surges” that happened all over the country regarding the virus. One of the other interesting “surges” we have followed is the “surge” in new healthcare business start-ups, particularly businesses owned by advanced practice providers, such as nurse practitioners, physician assistants, certified nurse midwives, clinical nurse specialists, and certified registered nurse anesthetists (“Advanced Practice Providers” or “APPs”). One of the hottest areas in the healthcare start-up surge has been the creation of practices that are telemedicine focused.Client Alert

Ohio Department of Health Releases Updated Charge Limits for Medical Records

March 7, 2022Under Ohio law, a healthcare provider or medical records company that receives a request for a copy of a patient's medical record may charge an amount in accordance with the limits set forth in Ohio Revised Code Section 3701.741. The allowable amounts are increased or decreased annually by the average percentage of increase or decrease in the consumer price index for all urban consumers, prepared by the United States Department of Labor, Bureau of Labor Statistics, for the immediately preceding calendar year over the calendar year immediately preceding that year, as reported by the Bureau. The Director of the Ohio Department of Health makes this determination and adjusts the amounts accordingly. The list is then published, here.Client Alert

No Surprises Act Compliance (Published by NAMAS, 2/25/22)

March 7, 2022The Department of Health and Human Services published three parts to the No Surprises Act towards the end of 2021, which took effect January 1, 2022. The Act is intended to protect consumers from “balance billing,” which occurs when a patient receives a bill with a higher price than they may have anticipated because they did not have knowledge that the provider or facility was out-of-network. The purpose of this article is to note certain requirements that compliance employees will need to be aware of at their facilities, including notice and consent, good faith estimates, and public disclosures.Client Alert

No Surprises Act and You (Published in the SCMS Winter 2022 Newsletter)

March 3, 2022Legislation has been adopted by the United States Congress and the Ohio Legislature known as the “No Surprises Act” which attempts to regulate billing by professionals and facilities to patients who are not in networks with those facilities or providers at those facilities. The federal bill was triggered by some sensational news stories of patients being billed for tens of thousands of dollars for emergency care when the hospital was out of the network under the patient’s insurance plans.Client Alert

Are You Impacted by the Project Labor Agreement Executive Order?

February 28, 2022Project Labor Agreements (PLAs) are a quasi-collective bargaining agreement between employers and unions. They establish the terms and conditions of employment, including dispute resolution. They are put into place on specific projects and apply to the contractor, whether it is union or non-union. Employees hired on the project will be treated as union.
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