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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

International Sales Contracts - COVID-19 Pandemic and Force Majeure

December 11, 2020Client Alert

Identity Protection PIN Available to ALL Taxpayers in January

December 11, 2020Beginning in January 2021, the IRS will allow all taxpayers who can properly verify his/her identity to obtain an Identity Protection PIN. An Identity Protection PIN (“IP PIN”) is a six digit number assigned to a specific taxpayer to assist in preventing the misuse of a taxpayer’s social security number on fraudulent federal tax returns. Previously, only confirmed victims of identity theft who resolved his/her tax issues with the IRS were eligible for an IP PIN.Client Alert

Updates for Employers Regarding Medical Marijuana

December 11, 2020In 2020, the momentum for marijuana legalization and decriminalization continued. In the November elections, five more states legalized either medical marijuana, recreational marijuana, or both. Although marijuana remains illegal in any form under federal law, just last week, the U.S. House of Representatives voted to decriminalize marijuana usage at the federal level. It's unlikely that the Senate will approve of that, but it is another milestone in what has been a rapidly shifting landscape over the last decade. Given the patchwork of state laws regarding medical and recreational marijuana, widely varied approaches for workplace protections, and the total federal ban, it can be difficult for employers to know how to deal with this issue.Client Alert

Vaccination Considerations for Employers

November 25, 2020Today, three Covid-19 vaccines have tested as highly effective (90%+ efficacy) and are advancing in the process for emergency use. This is especially welcome news in Ohio, which has skyrocketing cases and our strategic response has been to turn the entire state into the small town of Bomont with strict curfews and bans on social gatherings.Client Alert

Did You Receive More than $750,000 in Provider Relief Funds?

November 24, 2020The Provider Relief Funds (“PRF”) - authorized under the CARES Act - has been a vital tool for health care providers during the COVID-19 public health emergency. These funds have allowed providers to stay open and continue to offer care during these pressing times. While helpful, these funds do come with several important obligations. First, fund recipients are required to comply with certain record-keeping requirements as well as comply with certain balance billing prohibitions. See our Client Alert. Second, fund recipients are required to report their intent, use of funds, and other data elements, which helps promote transparency to the federal government. Please see our Client Alert on provider relief fund reporting requirements. Third, and perhaps a new concept for many providers, fund recipients of more than $750,000 must undergo a “single audit” to ensure program compliance and appropriate use of funds.
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