Navigating Ohio’s Name, Image, and Likeness Reform for College Athletes

On June 28, 2021, Ohio Governor Mike DeWine signed an executive order allowing Ohio’s college athletes to profit from their name, image, and likeness (NIL). All three NCAA divisions followed in lock-step on June 30, 2021 enacting an interim policy suspending its longstanding NIL restrictions. While both Ohio’s Executive Order and the NCAA’s interim policy are intended to be only temporary solutions until formal NIL legislation and NCAA bylaws are adopted, it is relatively clear that NIL reform is here to stay and will only be clarified as deals (and precedent) are made.

As a result, Ohio’s student athletes are now free to pursue independent business ventures including advertising and endorsements deals, appearances, and even their own entrepreneurial ventures all while maintaining their ability to compete for their respective Universities.

By no means, however, is the recent NIL reform a blank check for Ohio student athletes to pursue any business opportunity presented. Instead, all NIL deals must meet three broad requirements:

1. No Pay-for-Play;

2. No Improper Inducements; and

3. Compliance with Ohio Law.

NCAA member institutions, student athletes, and fans should be familiar with the first two concepts: a student athlete may not be compensated for his or her performance on the playing field (pay-for-play) or for his or her decision to attend a particular university (an improper inducement).

For Ohio universities, student athletes, and the businesses that wish to partner with them, the third requirement (compliance with Ohio law) is where the uncertainty comes in. Under Ohio’s executive order, student athletes may earn compensation from NIL opportunities and retain agents, attorneys, and other professionals to evaluate such opportunities to ensure compliance with applicable law, NCAA, and university rules without their scholarship eligibility or amateurism being affected.

With that being said, there are serious limitations as to when an NIL deal can be made and what type of deal can be made under the executive order:

1. No Advertising During Official Team Activities: Student athletes may not enter into contracts that require them to display a product or advertise for a sponsor during official team activities;

2.  No Conflicts of Interest with the University: Student athletes may not enter into contracts that conflict with a provision of a contract to which their university is a party;

3.  Universities may (but are not Required to) Prohibit Student Athlete Use of University Logos, Symbols, or Intellectual Property: Student athletes are not afforded any right to use university’s intellectual property such as names, logos, symbols, or trademarks in their independent business ventures. Accordingly, Universities may choose to, but are not required to, prohibit their student athletes from using such intellectual property in their NIL ventures;

4.  Universities, Conferences, and Other Organizations may Prohibit Student Athletes from Contracting with Certain Businesses: universities, conferences, and other organizations with authority over college athletics may establish rules prohibiting student athletes from entering into contracts which are associated with activities or products related to controlled substances, alcohol, adult entertainment, or gambling;

5.  All Prospective NIL Deals are Subject to University Review and Approval: All NIL contracts must be disclosed to the university to be reviewed for conflicts and compliance with NCAA, conference, and university rules before they may be executed by the student athlete.

Perhaps even more important than the limitations themselves, the executive order empowers Universities to establish reasonable policies or standards to address and punish student athletes for the violation of Ohio NIL law as well as NCAA, conference, or university rules. 

Conclusion

Despite the uncertainty and the regulatory limitations of NIL changes, it is an exciting time to be a student athlete. After years of often heated cultural and political debate surrounding amateurism and the feasibility of allowing student athletes to monetize their campus (and sometimes national) notoriety, NIL reform seems to reach a happy medium. Although athletic departments can certainly expect a relatively hefty administrative burden in ensuring compliance with NIL reform, the NCAA’s central tenets of amateurism remain intact. On the other hand, student athletes and the businesses that partner with them already have and will continue to reach lucrative deals.

Whether you are a student athlete or business considering an NIL opportunity, or an athletic department seeking to tailor practical and compliant policies in the face of changing regulations, attorney (and former Division I scholarship athlete) Garrett Mayleben is here to help. Our office is dedicated to guiding you through changing NIL policy and helping you achieve your goals—with your business, and both on and off the field.

Call (859) 757-1240 or email gmayleben@mahanlaw.com to schedule a free consultation today.

Written by Garrett Mayleben, Esq.; Published: August 15, 2021