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NIL Legal Q&A with Darren Heitner

Written by Chris Clark

legal questions about name, image, likeness

With name, image, and likeness legislation still taking shape around the country, and plenty of questions left to answer, AthletesForProfit.com turned to a trusted legal expert for more insight into the latest movement on the NIL front and what it means for athletes.

Darren Heitner is an attorney who worked closely with Florida state representative Chip LaMarca in developing legislation that  was eventually signed by Governor Ron DeSantis and will give athletes the right to profit from their name, image, and likeness beginning on July 1, 2021.

Heitner was honored by The University of Florida's Levin College of Law by being the sole recipient of the 2020 Outstanding Alumnus Award. He was also named to UF's 40 under 40 list in 2019 and was recognized earlier this year as a distinguished leader in the state of Florida by the Daily Business Review.

Heitner, who also launched SportsAgentBlog.com in 2005 and provides legal services through HeitnerLegal.com, spoke with AthletesForProfit.com about the recent Congressional hearing, plus what athletes should know from a legal standpoint about NIL.

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Q: You closely followed the June 9 Congressional hearing on name, image, and likeness, which was seen as an important step toward a national solution on NIL. From your standpoint, what, if anything, significant was learned during that hearing?

HEITNER: The biggest takeaway is that there is still a lot of work to be done before a name, image, and likeness bill is debated in Washington D.C. While no one spoke against athletes obtaining these rights, there are many unanswered questions about what the ultimate federal legislation should look like and whether it should extend to athlete issues that go beyond NIL. I also learned that Connecticut has, as of today, sent a NIL bill to its governor for execution, which adds to the number of states who are acting on this issue in the meantime.

Q: You have expressed some legal concerns with some NIL-related companies that contract directly with universities also serving as a conduit of sorts to help athletes monetize, based on current state laws. For instance, Twitter recently announced a partnership with Opendorse to allow student-athletes to monetize video content they publish on the Twitter platform, and Opendorse contracts directly with institutions of higher learning.

Which party should be most concerned about deals like this? What's the resolution here?

HEITNER: Those NIL-related companies should be concerned. Laws were drafted with the clear intention of prohibiting such companies from supporting or benefitting the institution or its athletic programs on one hand and also compensating or causing compensation to be directed to college athletes. The resolution would be picking a lane and sticking to it.

Q: One aspect of NIL that I feel has flown under the radar is the issue of disclosures. What do we know about this process so far, and could you briefly explain it?

HEITNER: States vary on the process by which disclosures of athlete engagements and their representation agreements must be made to athletes' respective universities. In Florida, for instance, the requirement is that a college athlete who enters into an NIL deal must disclose the contract to his/her school in a manner designated by the institution.

Q: Is there a concern that smaller institutions may not have the resources to help its athletes fully capitalize on NIL or to properly handle the disclosure process? If the NCAA allows for a mechanism for schools to give insurance, group licensing, share revenue, or other potentially expensive elements, can they survive?

HEITNER: This was a topic that came up during today's congressional hearing. The idea was floated that the richer schools may be able to subsidize the smaller schools when it comes to expenses such as insurance and coverage of healthcare if that is an element of a national NIL law. I do not think anyone wants to see a consequence of all of this being that athletic programs are downsized and the reduction of opportunities for college athletes. A pure NIL law would not lead to such a consequence.

Q: A handful of states are still moving toward a July 1 “go live” date, while federal legislation and NCAA guidelines are still pending. In the meantime, from a legal standpoint, what can student-athletes do right now to get ready?

HEITNER: They can be actively building their brands, which includes their social media presence. They can also start considering who may be the best fit as a representative for procuring opportunities and whether they wish to sign up for a platform like Icon Source, which will help athletes find brand opportunities. Finally, they should be doing what they can to have an appreciation of their respective state's laws on this subject and speaking with their compliance departments to learn what the athletic departments are doing, such as aligning with a company like INFLCR, to prepare for a change in the landscape.

Q: If you represented a student-athlete, what would you advise? Grab a domain name and sit tight? Is the most important thing just not to accept anything of monetary value until the picture becomes more clear, and until athletes can run these opportunities by compliance?

HEITNER: It is vitally important to not enter into any contract with a brand or agent. Even an oral agreement should be avoided at all costs. Grabbing a domain name and starting to consider protecting intellectual property would be wise, in addition to bolstering social media presence and coming up with a strategy. Start thinking about various industries and brand categories; what types of companies, products, and services do you enjoy? The best endosements are those that are authentic and not forced.

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