NIL Rules: Welcome to the Name, Image, and Likeness era

This week’s Between The Hashmarks is written by guest columnist Casey Muir, who is Senior Director of Client Management for Octagon Football, and a registered agent with the NFLPA. 

When the clock struck 12:01 a.m. on July 1, it didn’t mark the start of a new day rather it was the dawning of a new era.

Welcome to the Name, Image, and Likeness era, where college athletes are allowed to be paid.

Attention-grabbing headlines flooded front pages, websites, and social media timelines:

“D’Eriq King signs a $20k deal with College Hunks Hauling Junk”

“Hercy Miller: Master P’s Son Signs $2M Endorsement Deal”

Can someone please show me the contract terms on that second headline? I’ll believe it when I see it.

While those aforementioned “deals” made headlines, they are not the reality for most student-athletes. As an NFL agent, this day was one that I have been anticipating for years, and it’s a long-overdue change to the NCAA rules on “amateurism” that can greatly benefit student-athletes if done correctly.

So, what do you need to know?

An agent’s guide to NIL Rules, NIL definition, NIL deals

Dear Student-Athletes:

Over the last week, I’m guessing your DMs have been blowing up with NIL offers. I’ve personally seen student-athletes offered autograph deals, requests for large number of social posts, and Cameo listings, all at very low prices, and way below market value.

You’ve probably noticed companies like Yoke Gaming and GoPuff offering to pay “every student-athlete” who promotes their company on Instagram. I’ve even seen one company that promotes itself as a “door opener” for student-athletes in the NIL space, offering a few hundred dollars to athletes in exchange for two video posts promoting the brand. In fact, the majority of deals I’ve come across have been in the $50-$500 range. Those of you with big social media followings could command at least five times that amount for just one social post, let alone two. I’m sure your Twitter timelines and Instagram stories were full of those under-market value promotions last week, I know mine was.

So who gets the most value from those deals? The companies getting widespread recognition, or the student-athlete getting significantly underpaid for the value, audience, endorsement and brand equity they provided to those companies?

From where I’m sitting, it seems as though most student-athletes are in a race to grab every dollar thrown their way. That’s certainly one way to operate, but is it the best way? NIL is not just a July 1 thing, it’s here to stay and could have a significant upside for athletes who embrace the opportunity and use it wisely. As a veteran NFL agent who has been in the business for over a decade, allow me to offer some advice.

Have a Marketing Strategy

The reality is that major national brands have not increased their marketing budgets for NIL, and at the local level, small businesses have little marketing budgets to begin with. The available marketing dollars for athletes has not changed, however the pool of athletes looking for marketing dollars increased exponentially overnight. As student-athletes in the NIL era, you are now competing for the same marketing dollars as all pro-athletes and influencers across the country.

So why should a company choose you? That’s the key question you need to answer. To do so, you need to determine what makes you different. Do you have unique brand identifiers? (See: Rodrigo Blankenship’s glasses or Troy Polamalu’s hair). Do you have an impactful story? (See: Michael Oher, you’ve all seen the movie “The Blind Side”) Do you have a huge social media following? There are many ways you can stand out in the crowd. Find your unique signature or asset, and embrace it.

At Octagon, the global sports marketing, and talent management agency where I work, we take the approach that each athlete is unique, and each partnership has to fit that specific athlete.  Octagon Football’s Director of Marketing, Jenna Nobles, is one of the best marketing pros in the business. She provided the following thoughts to help navigate NIL and find deals that make sense for you:

• Have goals! What is important to you in the NIL space?
• Do your research, and make sure the company you are aligning yourself with shares your values.
• Be yourself. Authenticity is undefeated!
• Have an opinion. Be hands-on, and make sure the content looks and feels like your brand.
• Not all NIL deals are good deals. Protect your brand and know your value.
• Don’t rush. Take time to produce quality content.
• Look for long-term relationships, not payment transactions.
• Ask questions! Make sure you understand the full ask of services before agreeing to terms.

Understand The Contract Terms

Behind every promotional social media post and every NIL deal publicized in the media, lies a contract. As NIL unfolds we’ll undoubtedly hear horror stories about student-athletes getting into bad contract terms, issues surrounding exclusivity, ownership of video content and intellectual property, non-performance of contract deliverables and payment issues, brand conflicts, and infringement issues with school trademarks.

As agents, one of the most important things we do is protect our clients. We spend a lot of time negotiating every single detail of each playing contract and marketing contract, and ensure our clients fully understand the entire agreement before signing.

Here are a few key contract items you should think about before signing your next NIL deal:

1. Prohibited Deals: Many state NIL laws and school regulations prohibit student-athletes from entering into endorsement contracts with certain categories, brands, or companies. Many prohibited deals involve, tobacco or alcoholic products, gambling, or anything that conflicts with a current school contract or sponsor. Do you know what’s prohibited in your state and by your school?
2. School Intellectual Property (“IP”): Your college program has IP protection on the school’s name, logo, jerseys, marks, verbiage, designs, etc. Using those marks without permission could result in a trademark infringement lawsuit. How do you get permission to use the marks? Who is paying the rights fees?
   Deliverables: Do you fully understand the services you’re expected to provide under the contract? How do you know if the deliverable ask is worth it when compared with the dollar value of the deal?
3. Protecting your own IP: When you create video or print content as part of your deliverables, who owns it and for how long?
4. Exclusivity: Companies often press for exclusivity, which prevents an athlete from signing deals with competing brands, or in certain categories for an extended period of time. Breaching an exclusivity clause is an easy way to trigger a quick lawsuit. Do you know how to value exclusivity, and do you understand your limits moving forward?
5. Morality Clauses: This is another common contract clause related to an athlete’s personal conduct – and one which, if breached, could give the company an opportunity to terminate the deal. Do you understand what conduct that could trigger a morality clause?
6. Damages: Do you know what the financial penalties are if you fail to uphold your end of the deal?
7. Compensation: What is the true market value of your services? If a deal involves social media obligations, how do you know the value of your platform?

From marketing strategy to contract knowledge, trademarks, and future tax implications – and the list goes on – as student-athletes you need to fully understand what you’re getting into. It has been one week since NIL took the NCAA (and my Twitter feed) by storm. It marked the beginning of a huge shift in the potential careers and lives of countless student-athletes around the country and a shift in the industry as a whole.

Use it wisely, and don’t be afraid to ask for help with NIL from experts in the industry. The pros do, so should you.

Casey Muir is Senior Director of Client Management for Octagon Football, and a registered agent with the NFLPA. You can follow Casey on Instagram @casey_muir1, and on Twitter @Casey_Muir1.