Since the name, image, and likeness (“NIL”) laws applicable to college athletes became effective on July 1, 2021, in many states (including Ohio), numerous athletes have agreed to deals with various sponsors. We previously discussed Ohio’s law and the role of an attorney with respect to NIL. While professional advisors (attorneys, accountants, financial advisors, etc.) are very important for a student-athlete in NIL matters, an important advisor can be the student-athlete’s parent or parents.
NIL rights for student-athletes are new for everyone, including the student-athletes’ parents. Parents want what is best for their children. But, parents may not know how best to be an advisor and to assist with NIL matters, and on business and legal matters generally. This is completely understandable and parents should not feel like they cannot help simply because of a lack of experience or requisite knowledge.
The most important ways that you as a parent of a student-athlete with NIL opportunities can assist are as follows:
Support, Without Pressuring. Ultimately, NIL opportunities belong to the student-athletes – it is their names, images, and likenesses being sought! You should support your student-athlete in seeking NIL opportunities while not pressuring him or her to either agree to an opportunity or not agree to an opportunity. Your student-athlete will be more likely to involve you if they feel supported rather than pressured.
Do Not Be Blinded by The Almighty Dollar. While the money being offered may be attractive, that does not mean the opportunity is a good one. A contract may foreclose against other, better opportunities in the future and may ask for “too much” from your student-athlete. Certainly, money is a vital component of any NIL deal, but it should never be the sole motivating factor. In advising your student-athlete, you should look beyond the money to see what potential pitfalls lie ahead concerning a proposed NIL deal.
Understand That It Is Not Your Money. Assuming that your student-athlete is 18 years of age or older, he or she is a legal adult who can freely enter into contracts and earn compensation for his or her NIL. Such money is the student-athlete’s. Do not pressure your student-athlete to share his or her earnings with you, or anyone other family members or friends. This may alienate the student-athlete and cause long-term damage to your relationship. This does not mean you cannot accept gifts or other assistance from your student-athlete if such gifts or assistance are freely offered by them.
Understand the Mindset. For many student-athletes, attending college is the first time they are “out of the house”. Many student-athletes (and college students generally) may have the mindset, “I’m an adult now and I can handle this myself.” Do not try to minimize this feeling, as it may push the student-athlete further away, whereby the mindset shifts to, “I’ll prove to you I can do this on my own.” Rather, be understanding and tell your student-athlete that such thinking is natural and understandable. In fact, NIL matters can be a worthwhile, learning business experience for someone who would not otherwise be able to gain such experience at this age if NIL laws had not become effective. Encourage your son or daughter to make the decisions based on sound advice!
Ask to Be Involved. Even though we recommend giving the student-athlete room to make the decisions here, you should still ask to be involved, without being overbearing. Your goal is to help and advise your student-athlete, not to become his or her decision-maker. Show that you understand that the NIL decisions are made by your student-athlete and that you simply wish to help with the process. You can be helpful in your student-athlete’s selection of legal counsel, financial advisors, and agent-type representation.
Respect Confidentiality. Your student-athlete’s NIL arrangements or agreements may be subject to strict confidentiality requirements that if violated can have significant consequences. As lawyers, we can advise on this. But, as a general rule, it is always prudent to keep confidential the business dealings – the NIL deal – of your student-athlete.
Be Skeptical! It is perfectly acceptable, and often encouraged, that you be skeptical of potential NIL deals and of advisors seeking to represent your student-athlete. If the student-athlete is willing to include you (which we recommend), then ask tough questions of advisors so that you can be comfortable that you can help your student-athlete determine if the advisor is qualified and looking out for the best interests of your student-athlete, rather than seeing them as a potential “gold mine.” Any advisor who dances around the tough questions or does nothing but gush about your student-athlete may not have the proper motivations. You want your student-athlete to have an advisor that says what he or she needs to hear rather than what he or she wants to hear. Furthermore, look at all matters objectively. If you were analyzing a NIL offer made to someone who is not your son or daughter, would you view it differently?
Understand Your Role as A Potential Payor. There may be instances where the parents initially pay the fees for advisors until the student-athlete earns enough compensation from NIL to begin paying advisors’ fees himself or herself and to reimburse the parents. Just because you are paying an advisor’s fees on behalf of your student-athlete does not mean you are the client or have any right to make decisions for your student-athlete. In the case of an attorney, your student-athlete may waive the attorney-client privilege allowing the attorney to communicate with you, the parents, directly, but your student-athlete is still the client and the attorney’s duties are to your student-athlete, not to you. For us as lawyers, you are a valuable resource in advising your student-athlete. We welcome your input.
Be Prepared for Things to Not Work Out. It’s true in all industries and professions that not all deals were good ones in hindsight. A deal that looks good in all respects at the outset may nevertheless turn out poorly. That does not mean anyone made a bad or incorrect decision. In those cases, give your student-athlete support. A parent’s support can be most needed when things do not work out as hoped. Even if a deal that you advised against does not work out well in the end, do not be demeaning. A mere “I told you so” may ensure your student-athlete does not involve you in NIL matters going forward.
Be Understanding. If your student-athlete does choose to approach NIL matters entirely on his or her own and without your help, be patient. This may not be easy but trying to force your way into the matter will likely not work and may only alienate your student-athlete. As discussed above, your student-athlete likely wants to show himself or herself, and perhaps others as well, that he or she is an adult now and can handle these things alone. The motivation is not to hurt you. So, if your student-athlete does elect for you not to participate, do not take it personally and be understanding.
Listen. Sometimes your student-athlete may just want someone to listen to his or her concerns, without necessarily offering advice or solutions. In those cases, listen and offer to give help and proposed solutions if requested. But do not force your opinions or solutions if they are not wanted.
Have Fun! The new NIL laws will open doors for many student-athletes and their families to experience new things and meet new people – and work together. Enjoy those experiences when they arise!
To the student-athlete reading this, we haven’t forgotten about you!
You know your parents best and you must consider whether and to what extent you want to involve them. Generally: do not be afraid to ask for their guidance and assistance; express your desires and opinions, and do not be afraid to disagree; tell your parents, respectfully, if they are being overbearing or unreasonable. Ultimately, trust your gut! If you feel like your parents (or others close to you) do not have your best interests at heart but are instead seeking their own personal recognition or financial gain, talk to an attorney about how to protect yourself and your money. Remember, it is your name, image, and likeness!
We at Carlile Patchen & Murphy LLP are qualified and willing to represent a student-athlete in all NIL matters. And to be sure, we are happy to include parents as part of the team.
Finally, the great World War II General, George S. Patton once said “all glory is fleeting.” With this in mind, what is most lasting for the NIL athlete is his or her education. We embrace placing, and encourage the student-athlete to place, high priority on achieving academic success while attending school without the interference of NIL opportunities. The value of education will be everlasting, but NIL opportunities may be fleeting.
If you have any questions about NIL matters, please contact any of the Carlile Patchen & Murphy LLP attorneys named below.