On October 26th, the NCAA Board of Directors for Division 1 institutions issued new guidance to their member institutions regarding name, image, and likeness (“NIL”) activity by student-athletes. Primarily meant to address the participation by booster “collectives” in NIL activity, this guidance also offers helpful opportunities for brands, namely regarding what the educational institutions may do to facilitate NIL activity. For example, the Division 1 Board of Directors stated that the following methods of institutional support are acceptable:
- Informing the student-athlete of NIL opportunities (e.g., transmitting information without further involvement)
- Providing student-athlete contact information to brands seeking to engage student-athletes
- Providing stock or stored photos, videos, and graphics to the student-athlete or a brand engaging the student-athlete
- Arranging space for a student-athlete to meet with a brand on campus
- Promoting the student-athlete’s NIL activity where there is no value or cost to the institution – such as retweeting or liking the student-athlete’s social media post
Brands can take advantage of these opportunities by connecting with the applicable educational institution.
The new guidance, however, reiterates that impermissible activities remain for educational institutions with respect to NIL activity – essentially, the institutions may not have too much involvement in such activity. Where an institution may go too far would be by: securing or negotiating deals for or on behalf of student-athletes; developing promotional materials for or otherwise proactively assisting in the implementation of a student-athlete’s NIL activity; or entering into a contract with a student-athlete for the sale of a product that includes the student-athlete’s NIL.
The “rules of the road” in the NIL space continue to develop and this latest guidance is another attempt to clarify what is and is not acceptable from an educational institution standpoint (but which, of course, must not conflict with the applicable state law governing the particular institution).