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Student-athlete NIL use from a licensing perspective

As reports come in on the vast array of opportunities now available to student-athletes for doing endorsement and sponsorship deals for use of their respective names, images and likenesses, there are emerging opportunities for licensing deals as well.  

Three key issues:

Co-branding.  As things currently stand, schools have the discretion to permit the use of their respective marks in connection with NIL on products, provided such trademark use is approved through the school or its trademark licensing agent. Co-branding opens tremendous licensing opportunities and allows for schools and student-athletes to mutually benefit from use of their respective IP rights..

Group Licensing.  Will we see the return of the EA Sports college video game?  Lot of us hope so, and efforts are underway to organize a form of group licensing, which would pave the way for companies like EA to product games that include both college match-ups and identify players in what would surely be an exciting and realistic game.

Enforcement. While NIL licensing opens up the opportunities from great and unique new licensing programs, it also opens up challenges in enforcement of the separate IP rights of schools and student-athletes. As former SVP and General Counsel of CLC, having established collegiate compliance and enforcement programs, I can attest that infringers will be out to take advantage of the situation. It behooves collegiate institutions and student-athletes to form alliances designed to protect their respective valuable IP rights.

Just as schools had been preparing, so had those in other parts of the licensing deal-making landscape. “Even though there’s been a flurry of action, people shouldn’t assume this is reactive,” said Malaika Underwood, SVP Licensing at OneTeam Partners, which represents commercial interests for members of a host of professional athletes’ players unions. “Including OneTeam, there have been a lot of companies that have been strategizing about what the landscape will look like, how best to benefit athletes…. Even though there’s been a flurry of action, people shouldn’t assume this is reactive.” OneTeam (among others) is working to organize things from the athletes’ side, setting up some form of group licensing rights so that licensees aren’t faced with hundreds of one-off agreements if they’re trying to assemble, say, a videogame or trading card program. “It’s going to be the wild west until rights get aggregated the way NFL and MLB player rights have been aggregated,” said the large school licensing executive. “They don’t have to be aggregated into one entity the way those rights have. But my guess is that when the dust settles, we’ll have maybe 3-5 collegiate entities representing player rights that we are familiar working with and can execute deals on a fairly straightforward basis.”

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