By Valeen Hyde & Malik Jackson JBA Young Lawyers Section
Under Florida’s new law on compensation for name, image, and likeness (NIL), the timing of participation in collegiate athletics is undefined.
Stakeholders including attorneys, athletes, institutions and NIL business partners should work with state legislators and administrators to define when an intercollegiate student-athlete starts and stops participating in an athletic program.
Under Florida’s Constitution, participation relates to equal protection, due process,and privacy. It implicates the prohibition of laws that may impair contracts.
Although you may assume an athlete must be an enrolled college student, under section 1006.74 of the Florida Statutes, an “intercollegiate athlete” is defined as “a student who participates in an athletic program.”
In Florida, participation should not infringe upon an athlete’s ability to earn compensation for their NIL, and the duration of a contract for representation of, or compensation to, an athlete for the use of the athlete’s NIL may not extend beyond participation.
Stakeholders should consider three primary issues when determining what participation means in Florida:
Triggering athletic participation
Consider when an athlete triggers initial participation. Initial triggers may include signing a letter of intent for a postsecondary educational institution; the term preceding or issuance of a final NCAA amateurism certification; an enrollment date; the start of classes; an activity date (therapy, lifts, meetings, practice, competition, etc.); first game day; or some other agreed-to date.
Institutions, conferences, sports associations, governing bodies and agreements between an athlete and any of the foregoing entities may, absent legislation, trigger, impose or enforce participation.
Toggling athletic participation on and off
Consider the circumstances between participation start and end dates. Which circumstances will permit an athlete to toll participation and later toggle back as a participant?
College athletics, study abroad opportunities, leaves of absence and the transfer portal highlight the foreseeability of participation toggling.
Other examples include a legal, institutional, team or coach-imposed investigation of an alleged code of conduct violation; suspension; injury diagnosis; discipline for an athletics rule violation; proceeding; and determination of academic ineligibility.
Whether an athlete is a participant is in flux. Yet participation remains an integral requirement to exercise and protect various rights.
Under the statute, any contract to represent an athlete or for athlete compensation may be void if an athlete is suspended or no longer participating.
In September 2021, the University of Florida Gators and The Brandr Group established group licensing for student-athletes for 21 sports, permitting collective use of athletes’ NIL co-branded with UF’s intellectual property. Now, one athlete’s participation toggling may imperil group licenses with other “participants” that are part of a collective bundle of granted rights.
Terminating athletic participation
Consider foreseeable termination dates which include: removal from a team; the last scheduled competition; the end of a final team activity; graduating with no remaining eligibility; and the exhaustion of eligibility appeals.
Florida law leaves stakeholders to define participation. The law requires the Florida Board of Governors and the State Board of Education to adopt rules and regulations to implement Florida’s NIL law.
However, private collegiate institutions in Florida are not subject to the jurisdiction of either entity. Stakeholders should identify best practices to avoid participation ambiguities that punish NIL stakeholders.
Attorney suggestions to legislators and administrators are essential to define participation and to avoid potential disparities and deprivations relating to NIL rights.
Valeen Hyde is an associate at the Bedell Firm. Jackson is an associate at Smith Hulsey & Busey.