New York State Lags Behind in NIL Legislation

 I am receiving a lot of questions re what is the NIL law in New York State. The answer is: New York State DOES NOT currently have its own NIL laws in place governing collegiate athletes. Some  states like Florida, Georgia and

Alabama  have already passed NIL laws and legislation outlining what athletes can and cannot do and setting forth requirements for agents, player reps and attorneys.

The NCAA has its interim NIL law in place and recommends that one refer to state guidelines for further guidance. But as stated, the conundrum we have here in New York State is that we do not have any state guidelines in place to “guide”’us, so it is the wild wild west (or east) in New York for colleges, athletes and agents/attorneys. 

It is highly recommended that colleges implement their own NIL rules and work closely with athletes to inform them of what is and is not permissible, to protect themselves and their athletes. Compliance is key. It is strongly recommended that athletes consult with an agent or attorney before entering into any third-party deals. Athletes must know what is and what is not permissible. For example, some colleges prohibit using campus grounds/facilities for photo/video NIL activities or require athletes to obtain prior written authorization before engaging in such activities. Athletes also have to be very careful about potential exposure to trademark and copyright infringements for example if they promote a third-party brand using a photo they do not own the rights to, or post a photo that contains their school’s trademarked logo. 

An athlete should rigorously review and investigate the brand/company they are asked to promote for any unsavory reputation or prohibited affiliates (Barstool for example for its gambling association). 

Some colleges have a notice period and athletes must report all NIL activities within a specified time period, sometimes before they even sign a contract with a third-party. Many colleges are using the platform INFLCR to facilitate reporting and tracking and athletes should become familiar with this app. 

NIL activities for international students should be cleared with their respective government agencies to make sure their student visa is not compromised or jeopardized  for engaging in what might be deemed “employment” opportunities.

New York has state income tax. Student-athletes should consult with a qualified financial advisor or CPA re tax consequences arising from their NIL activities. 

Bottom line, do your homework! Ask questions! Know what is allowed and what is prohibited! Know your worth! 

College hunks cashing in on their NIL

 College HUNKS Hauling Junk. Yes, this is a real company which is now partnering up with collegiate athletes. If you’ve been following the exploding NIL deals, Miami QB D’Eriq King just partnered with College Hunks Hauling Junk moving company out of Florida. NCAA NIL era is evolving every day as we see more and more brands partnering up with collegiate athletes. NIL is still new territory open to interpretation. I am most interested in apparel brands competing for athlete partnerships. 

Let us take for example, University of Miami. In 2012, Miami partnered with Adidas in a 12 year deal estimated to be at around $6.55 million a year (although the exact amount has not been confirmed since Miami is a private institution and not required to disclose financial details) which is currently one of the most lucrative apparel deals among collegiate teams. (Nike was the previous partner with Miami and declined to match the Adidas deal). This means, that all U of M athletes are outfitted with Adidas apparel. I have seen their uniforms, especially the track ones, and they are 🔥 

With NIL now opening up the flood gates for athletes to benefit off their NIL, what happens when brands such as Under Armour want to partner with say QB King? Will such a deal be permitted since U of M already has a deal in place with UA competitor Adidas to outfit their athletes? Time shall tell. This determination will also depend on State NIL laws (New York does not have its own NIL laws as of the date of this post). Florida does have its own NIL laws and according to their laws, in pertinent part, a collegiate athlete may not enter into a contract for compensation for NIL if the terms of the contract conflicts with terms of the athlete’s team contract. Let’s break that down. If, for example, the U of M’s contract with Adidas contains terms/language that its athletes may not wear, display, or endorse any other brand during play (on the track, on the field etc), then the individual athlete must only wear Adidas while in play. However, unless the terms of the University’s contract with Adidas states otherwise, there is nothing in the contract language prohibiting an individual athlete from entering into a partnership deal with UA if they only wear and endorse the apparel out of play, and promote on Instagram, Twitter and so forth. I wonder if apparel brands will attempt to tailor the terms of their contracts going forward to include language prohibiting athletes from partnering with competing brands. I do not think this approach will fly very well in this new NIL era. Some universities have been supporting and pushing for NIL laws and therefore likely will not agree to such confining contract language. Importantly, SCHOOLS CANNOT SOLICIT NIL OPPORTUNITIES FOR THEIR ATHLETES! Curious to see how this all plays out. 

NIL: Zero to MIL. A New NCAA Revolution

Zero to millions in NIL benefits. Attorneys & agents aren’t jumping over hurdles to join the NCAA NIL bandwagon quite yet! There remains a lot of legalities and vagueness in the policy as the interim NIL takes effect. Some States have enacted their own NIL laws. Other States are lagging behind, New York being one, having not enacted their own NIL laws and therefore are carefully navigating the legal boundaries of the countrywide NCAA NIL policies. In addition to State NIL laws, colleges and conferences are permitted to develop their own protocols. The States of California and Florida and the collegiate institutions within, for example, have opened the floodgates and paved the way for NIL, having enacted their own specific NIL laws prior to the NCAA. The countrywide NIL policies laid out by the NCAA are not concrete, however, and are still open to lots of discussion and interpretation. 

Does NIL apply to the benefit of high school athletes? While it has been discussed that NIL opportunities may not be used as a recruiting inducement or as a substitute for pay-for-play, NIL

also states that “PROSPECTIVE student-athletes may engage in the same types of NIL opportunities available to current student-athletes under the interim policy without impacting their NCAA eligibility.” Hmmm. For lawyers this may be construed as a legal loophole. Us lawyers are always looking for loopholes. That’s part of our job! According to SI, NCAA’s proposed NIL framework supports recruits in entering NIL agreements as long as those deals are disclosed to colleges before they sign with the school. But where does that leave their remaining amateur eligibility? 

At the high school level, at least in the State of New York, athletes cannot benefit from NIL from wearing their high school jersey. They cannot earn money based on their identity as a high school student-athlete. If they do, they forfeiture their amateur status. BUT what about high school athletes competing with travel teams and non-school sports organizations? Technically they are not competing with or for their high school. Well I did some research since there appeared to be nil (excuse the pun) on the specifics of NIL in NYS. What I saw clearly delineated in the NY NYSPHSAA Bylaws (public schools), in pertinent part,

AMATEUR: A student who represents a school in an interscholastic sport shall be an amateur in that sport…When competing in non-NYSPHSAA sponsored events, an athlete forfeits amateur status in a sport by: Competing for money or other compensation…Receiving an award or prize of monetary value. 

One may ask why can’t high school athletes benefit from NIL? Well one school of thought is that it creates a hostile and uncomfortable “locker room” atmosphere rather than a team environment and will destroy the essence of high school athletics. Another rationale is that high school sports is all about competing for and with the team as one, as opposed for the individual. 

I am betting that some attorneys will be stepping up and challenging some of the “ambiguities” in the language of the bylaws. Take a look at California. High school athletes in California can profit from their NIL with the only restriction being an inability to utilize their high school’s name or marks, according to the California Interscholastic Federation. A CIF spokesperson confirmed this to 247Sports. That means outside of their team, they can benefit from NIL. 

Exciting new landscape and I’m happy to be apart of this evolving process.