Know the Law: Hiring a Name, Image, and Likeness Agent

Q: I am a student-athlete and I want to hire an agent to negotiate NIL contracts for me. Is there anything I should be aware of when hiring an NIL agent?

A: Historically, the National Collegiate Athletic Association (“NCAA”) provided very limited circumstances in which a student-athlete was allowed to have an agent. These situations generally varied depending on the student-athlete’s sport and whether the student-athlete was deciding to turn pro, but the basic premise was that student-athletes were not allowed to have agents.

Following the decision of the U.S. Supreme Court in NCAA v. Alston in 2021, student-athletes are now permitted to hire agents to negotiate Name, Image, and Likeness (“NIL”) contracts and assist with other NIL activities on their behalf in exchange for fair market value; these agents are traditionally referred to as marketing agents. The fair market value piece of this analysis is important because if the student-athlete does not pay the fair market value for the agent’s services, it is considered an improper extra benefit that can jeopardize the student-athlete’s eligibility under NCAA rules.

Yet, even though student-athletes can hire agents for NIL activities, student-athletes cannot hire agents for any purpose they desire under NCAA rules. For example, under NCAA Bylaw 12.3.1, a student-athlete becomes ineligible for participation in an intercollegiate sport if they agree, or have agreed (either orally or in writing), to be represented by an agent for the purpose of marketing their athletic ability or reputation in that sport (i.e. calling professional teams seeking a contract for the student-athlete); these agents are known as contract agents. Additionally, under NCAA Bylaw 12.3.1.3 student-athletes cannot have agreements with agents for representation for future negotiations (such as negotiating a professional contract). The result of these regulations is that a student-athlete cannot agree to have their NIL agent represent them in future negotiations (such an agreement would have to be agreed to when the student-athlete has finished playing intercollegiate sports). Notwithstanding the previous regulations, NCAA Bylaw 12.3.2 states that student-athletes can have legal counsel for proposed professional contracts, provided that the counsel is not representing the student-athlete in the negotiations of that contract. Ultimately, these restrictions make the rules around agents confusing for student-athletes and emphasize how important it is for student-athletes to understand who they can hire as an agent and what that agent can and cannot do.

If the foregoing was not confusing enough, unlike the four major sports league unions (NHLPA, NFLPA, NBPA, MLBPA), the NCAA does not certify marketing agents for student-athletes; meaning that student-athletes risk hiring someone who may be unqualified to act as their NIL agent. The only agents that the NCAA certifies are contract agents for Men’s Division I Basketball players considering whether to play professional basketball. While some states do have a certification process for agents, including contract and marketing agents, some do not. Regardless, student-athletes should do their due diligence on who they are hiring as an agent. Student-athletes can take steps to protect themselves by (1) determining whether the state of their institution has a law requiring athlete agents to be registered and using that information to aid their search for an agent; (2) once implemented, using the NCAA’s voluntary agent registration data base to find a reputable agent (this was approved by the NCAA in January 2024 and should go live sometime in the future); (3) entering into a written contract with the agent they wish to hire and having independent legal counsel evaluate said contract for unfavorable terms before signing anything; and (4) remaining cognizant that while student-athletes are permitted to retain NIL agents that they still cannot have an agent assist them with marketing their athletic abilities or reputation in that sport generally. Taking these steps can put the student-athlete in a secure position to fully maximize their NIL earnings potential while also protecting their short and long-term interests.