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What NCAA Student Athletes need to know about Sports Image Rights (NIL)

Nov 18, 2020 | Special Themes

By Athena P. Constantinou, APC Sports Consulting Ltd

Introduction

With five states enacting legislation on the use of name, image and likeness rights (NIL) by NCAA student athletes, it is imperative that student athletes start exploring how they can use this groundbreaking legislation, as best as possible.  The states which have enacted NIL legislation are Florida, California, Colorado, Nebraska and New Jersey, and there are another 30 states which are currently in the process of passing similar legislation.

In view of this new regime and the fact that student athletes will be able to control the commercial use of their identity, there are a number of basic sports image rights (NIL) concepts that student athletes should familiarize themselves.  These concepts are briefly described below, along with details on how they apply to student athletes.

What is a personal sports brand

While some athletes are simply popular because of their work on the field, there are some who have gone the extra mile to create a personal brand off the field that can always be utilized for profit and influence.

The term “brand” has been used through the years with different meanings attached to it; from initially being used by cattle ranchers to describe the process of using branding irons to mark their animals with their “brand”, to using “brand” as the name given to a product or service from a specific source. Today, we also use the term “personal brand” as we consider every person to have their own set of unique characteristics. Everything you say and do reflects your own independent brand. Athletes have a personal brand, which is more recognizable than that of an average person because of the visibility and attention that usually comes from competing in professional sports.

The personal sports brand is an intangible asset with commercial value.  The commercial value lies within the sports-person, it is the sports-person’s own personal goodwill.  Personal goodwill in identity is the force that attracts one to a famous individual so a person has a commercial value, given their fame.  As an intangible asset, the personal sports brand manifests itself by its economic properties, by granting rights and privileges to its owner and by generating income for its owner.

Definition of Image Rights (NIL)

Image rights are the expression of a personality in the public domain.  The provision of image rights in law enables the definition, valuation, commercial exploitation and protection of image rights associated with a person.  The right of publicity, often called personality right, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity.  It is generally considered a property right as opposed to a personal right and as such, the validity of the right of publicity can survive the death of an individual.

Personality rights are generally considered to consist of two types of rights:  the right of publicity, or to keep one’s image and likeness from being commercially exploited without the permission or contractual compensation, which is similar to the use of a trademark, and the right to privacy, or the right to be left alone and not have one’s personality represented publicly without permission.  In common law jurisdictions, publicity rights fall into the realm of the tort or passing off.  U.S. jurisprudence has substantially extended the right through the notion of natural rights and the idea that every individual should have a right to control how, if at all, their persona is commercialized by third parties with the intent of making a profit.

Legal Protection of Image Rights (NIL)

In order to protect their personal sports brand and resulting image rights, it is important for athletes to identify their relevant trademarks.  Most often, the protectable trademarks of athletes are their name as well as their likeness.  Once trademark rights are established in a name or likeness, the next step is to register these trademarks.  In the United States these trademarks can be registered with the USPTO and such registration expands common law trademark rights to the entire United States.

Protection of the athletes’ image and the relevant image rights from unlicensed use by others, adds to the commercial value of such image rights whereas lack of protection has the opposite effect.  Image rights are an asset of the sports personality with a potential commercial value.  Therefore it is crucial today more than ever, that sports personalities protect their image from unlicensed use by others.  As the potential for sponsorships and endorsements grows, so do the opportunities for unauthorized use and profit by third parties.

In order to protect their personal sports brand, it is important for athletes to identify their relevant trademarks and register them.  Such trademarks include a sports persona’s name as well as their likeness.  In addition, domain names denoting in any way the particular athlete’s name or likeness should be secured early on in the athlete’s career so as to prohibit their unlawful use and possible harmful effects.

Building the personal sports brand

A personal sports brand can be built in such a way that it transforms an athlete into a local, national or global signature brand, which can be leveraged to sell, endorsed and make a profit.  Athletes can build and capitalize on their brand by creating proper personal marketing strategies, with well-defined branding activities which are in line with their life plan. Strategic building of the athlete’s personal brand is important because it must be clear which values they bring to the marketplace in order to stand out from the rest of the athletes.

A successful personal branding strategy encompasses all of the following elements:

  • Identifying the athlete’s audience/followers – Athletes need to have an idea of who their fans are and identify what their audience wants from them as athletes and as brands.
  • Creating a niche – Athletes can do that by defining who they are and what their mission is, in addition to sports or through sports, both on and off the field.
  • Creating a story behind the personal sports brand – What is the athletes’ behavior on and off court? How do athletes participate in the community and what communication style and methods do they use? Where do they come from, what were their struggles so far and how did they overcome these struggles? These are all elements of the athlete’s personal story.
  • Creating a clear communication strategy:
  • Online strategy: Athletes should design, build, promote, monitor and optimize an Online platform which consists of:
    • A Website
    • Social Media Platforms (Facebook, Twitter, Linkedin, Instagram, Snapchat, etc. )
    • Web Broadcasting
    • Organizing and commercially engaging their fan base, especially their social media fans
    • Sharing special moments with their fan base through the use of social media events
  • Offline strategy:
  • Athletes can promote themselves offline through appearing in charity or other events, using philanthropy or common good causes. In-person interaction will create a much stronger, personal connection with fans
  • Personal Social Responsibility – Giving back to the community and associating themselves with a cause is vital to the athletes’ maturity and personal growth

Commercializing the personal sports brand

Personal sports brands are tradable commodities. When athletes build their personal sports brand they can utilize it strategically and turn it into a long-term brand that may withstand the test of time.  Below, we list a few ways through which personal sports brands can be monetized:

Endorsements by athletes are considered quite valuable for brands and they are sought at various stages during the life cycle of products. The promotion of the endorsement through the social media accounts of the endorsing athlete provides a direct way for sports personas to publicly endorse products and share their enthusiasm with their fans, and it is considered a core part of an endorsement strategy nowadays.

Endorsement contracts usually have a definite time frame, anywhere from one to five years with an option for renewal, within the time frame that athletes are active in their sport, and they may include one particular product or a range of specific products. The compensation can take many forms, from a fixed fee to a percentage of the sales of the endorsed products. Third party endorsers may provide bonuses for athletic achievement within the endorsement period.

Sponsorships are offered by sponsoring brands supporting the athlete, who believe that the appeal of the athlete to the public will have a positive effect on the brand’s product sales.

Sponsorships create a more involved contractual commitment for the athlete because of their long-term nature and because the sponsor requires certain actions from athletes in return for the sponsorship fee paid to them. Sponsorships can create a good-size income stream for the athlete as a lot of companies from various industries are moving towards this direction to raise brand awareness and recognition.  Athletes with high visibility are usually sponsored from various companies in different industries, simultaneously.

While endorsement is about the product, with the athlete used as a marketing tool, merchandizing is more about the athlete behind the image and the sale of a range of products under that athlete’s name and image.

Merchandizing often involves various parties while the athlete is at the core of the product’s marketing campaign; the athlete is not usually responsible for the design or production of the goods. The athlete may or may not have overall strategic control depending on the agreement entered into. In a lot of cases, a company with experience in the field of, for example perfumes, can seek permission to use the athlete’s name for a particular perfume thus making this a licensing deal.

Managing the personal sports brand

For athletes to stay in the spotlight and continue to grow their brand, a proper brand management strategy has to be in place. The brand management strategy controls two different aspects of an athlete’s brand: the personal or reputation aspect and the commercial or business aspect. The personal aspect deals with the issue of reputational risk and how athletes should be careful of their actions to preserve their good reputation.  The business/commercial aspect deals with the commercial exploitation of the brand and its monetization.

Reputational Risk

An athlete’s sports image, like all brands, is vulnerable in being dependent on such intangibles as people’s perceptions of them.  Closely linked to the commercial value of the athlete’s sports image is the opinion of the community.  An athlete’s good name or reputation is the regard which the athlete enjoys within the community.  If the community does not approve the actions of an athlete, his or her reputation would be in a bad state.  If the athlete’s image fits in well with communal convictions, then, his or her reputation would be positive, and this would have a direct, positive effect on his or her commercial value.  The athlete is greatly dependent on a positive reputation and it is the athlete who is the origin, the foundation of the reputation.  A number of athletes have been known not to live up to the public’s expectations thus tarnishing their brand, sometimes overnight, and jeopardizing their earning power.

According to Warren Buffet “It takes 20 years to build a reputation and 5 minutes to ruin it”. While building an athlete’s personal brand is essential, managing their personal reputation is equally important. Athletes have to be mindful of what their social media activity says about their personal brand as a whole. Their behavior online reflects who they are and what they stand for, so they should use their social media with care because productive activity can turn into destructive behavior.  The athletes’ response to their audience is also important; creating a two-way street, is the key to nurturing a community of fans. It is not about the athlete’s audience listening to what the athlete has to say, it is about having a two way conversation, a communication with the fans.

Business/Commercial management

The commercial aspect of a sports image, deals with the continuous commercial exploitation of the athlete’s brand through procurement of sponsorships, endorsements, ambassadorships, paid or pro-bono participation in various events etc.  When planning the business component of the athlete’s branding strategy, special emphasis should be given to the athlete’s communication with the public which assures their spotlight positioning. The fickleness of the public is a major factor which should be taken into account since someone who is “in” today, may be “out” next week and it takes a lot of constant hard work to be and stay ”in”.

Also, athletes should be careful not to spread themselves thin by taking on too many endorsement deals.  When athletes are overexposed by working with a large number of product/company endorsements, their credibility may suffer.  People may feel that the athlete will endorse anything to make more money.

Of course, it goes without saying that athletes should be particularly choosy in picking out their endorsement products and services and they should stay away from any products prohibited by their NCAA contract or controversial products such as drugs, alcohol, tobacco and many more.

Athletes should also create a crisis management strategy, and should have a plan in place for managing events that might trigger a reputational crisis; this includes handling their public behavior through various media outlets and handling online criticism and public anger or malicious comments.

Conclusion

With the legislative change regarding the NCAA Amateurism criterion, we are entering a new era in College Sports.  Carefully building a long-term plan, can help athletes maximize the benefits from the commercial use of their sports brand.  Now it is more important than ever that College Athletes are educated in navigating through these changes prudently and with caution.  NCAA Colleges are expected to rise up to the occasion and offer their student-athletes appropriate guidance in this evolving and at the same time confusing ‘amateurism’ landscape.

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