In our continuing "Developing a NIL policy" series, we touch on topics that colleges and universities should consider in drafting a comprehensive (and compliant) policy. In this publication, we will focus on the use of institutional marks/logos and use of institutional facilities by athletes for NIL activity. While these may seem like considerations that do not pair naturally, they share some similarities, most notably with respect to the fact that your institution likely already has in place a policy or past practice with respect to how each may be utilized by third parties.
If you are wondering what the National Collegiate Athletic Association's (NCAA) interim policy on NIL says on this topic, we’ve got bad news: it is silent. And, if you’re in Ohio and are thinking that such significant issues must surely have been addressed in the executive order, we’ve got more bad news. Though, in fairness, the executive order states that institutions are not required to grant student-athletes the ability to use institutional marks.
Where to go from here?
First, generally solidify your approach to usage of your marks and logos (but keep in mind, colors are a whole separate issue). If your IP policy already addresses as much, go back and review to see how NIL opportunities may fit in. If they don’t, or if no such policy exists, start by asking whether such use will be unfettered, restricted or not permitted. Remember, prohibiting use, while permissible, may lead your competition to have a temporary recruiting advantage. However, unfettered use may give the impression that the institution supports a product or brand where that is not the case.
Second, properly and thoroughly identify your intellectual property portfolio. Any gray area here will undoubtedly lead to disputes. While your marks and logos are likely centrally managed, be sure to reach out to any business unit on campus that may be involved, lest one fall through the cracks.
Third, if you are going to permit use, establish a uniform policy and process for athletes to seek permission. Again, if a process already exists, ensure that it fits whatever NIL obligations that the institution is operating under. If there are limitations or restrictions, list them. If additional information is necessary, be clear about what is needed and why. Remember, your institution has a strong interest in controlling the use of its marks and logos, but you have a similarly strong interest in seeing your athletes capitalize on their personal brands.
Last, think critically about how you will enforce violations with respect to logo and mark usage. Are you prepared to penalize an athlete for failing to seek permission to use a logo or a mark? What if the athlete wore their uniform while promoting a beverage while the institution has an agreement in place with a competitor?
While frequent readers will know that we recommend this often, we nevertheless reiterate the importance of educating your athletes on your NIL policy and any procedural requirements, as well as the policies of your athletic conference and association. Additionally, consider helping your athletes understand that they, too, are building a brand and how they can both manage and grow that brand.
In a way, you are likely already well-versed in how to manage requests to use campus facilities and how to deal with impermissible use. The unique aspect in the NIL space is that the use requests are now going to come from your own athletes.
First, and similar to institutional marks and logos usage, understand where your facilities usage policy may intersect with NIL opportunities. Will athletes be subject to the policy as written or will an exemption apply?
Second, presuming that athletes are permitted to use your facilities in accordance with your policy, consider how such usage will work with your existing method for evaluating such requests, your turnaround time on reviewing requests, how competing requests are prioritized and how fees will work with NIL opportunities that may need a quick turnaround.
Third, consider how the practical effects of an uptick in NIL-related facilities use requests might impact your existing staff. It may make sense to have someone from your athletics department cross-trained with facilities in an effort to both speed up the process and avoid overwhelming staff. Regardless, key contacts should be identified for athletes seeking to understand how facilities may be used.
Fourth, ensure athletes understand that your policy may require they complete certain forms before they may use a desired facility and, to that end, that certain facilities may be off-limits, even if they have access as an athlete (e.g., locker rooms, weight rooms, press booths, etc.)
Last, be certain to invite the appropriate personnel into the discussion with respect to liability and insurance requirements. An athlete suffering an injury during a sporting event may be viewed differently than an athlete injured during the performance of an NIL-related contract, even if the venue is the same.
As always, consult your legal counsel and your institution’s policy makers to ensure you are following the NIL law of your state (or lack thereof) and relevant institutional policies and procedures.