Name, Image, and Likeness – The Game and the Law are Changing

Brandon Davis | Phelps Dunbar LLP

Brandon Davis is a partner in Phelps’ New Orleans office. He focuses his labor and employment practice on employment- and family-based immigration. Brandon counsels employers and individuals in a variety of immigration matters, including visa petitions for employees, students and intracompany transfers. He has successfully represented employers and individuals in I-9/E-verify compliance, labor certification, consular processing, and F-1, O-1, P-1A and H-2B visas. He is recognized in many peer-review publications and is a sought-after resource on evolving legislation and regulations that affect immigration and the U.S. workforce.

Nicholas Patti | Phelps Dunbar LLP

Combining his experience as a student-athlete and attorney gives Nicholas Patti a unique perspective on the challenges student-athletes face on and off the field. An associate in Phelps’ Mobile and Tampa offices, Nick’s storied run as linebacker for the Florida State Seminoles provided insight into the goals of collegiate athletic programs and individual student-athletes. As a registered athlete-agent, he helps student-athletes throughout Florida navigate and stay on top of fast-moving NIL regulations. He also has significant experience working with companies and employers to provide proactive counsel and resolve disputes.

I. Name, Image, and Likeness (NIL) and Current NIL Landscape | 2:00pm – 2:20pm

• Phelps Powerpoint Presentation on overview of NIL
• NCAA interim policy adopted July 2021 – State laws enacted shortly thereafter (Only licensed to address Alabama and Florida’s NIL laws)
• Legal Foundations for NIL laws
  • Right of Publicity
  • Intellectual Property Considerations

II. Compliance and Ethical Considerations | 2:20pm – 2:40pm

• NCAA Compliance
• State laws
• Solicitation of client – social media/bribes/other inducements
•  Conflicts of Interests

III. International Student Athletes | 2:40pm – 3:00pm

•  Employment issues that are relevant to F-1 status
• How ISA’s can avoid violations of status related to unauthorized employment and how schools can help ISA’s maintain status notwithstanding NIL activities
• Longer-term picture: how ISA’s obtain and remain in status as an employee in the United States after college. That portion of the talk would look at the various visa categories available to athletes and the employers who engage them (O, P and H-2B)
• Discussion regarding proposed legislation creating an F-1 exception for ISAs

BREAK | 3:00pm – 3:10pm

IV. Case Law Analysis and NIL Contractual Agreements (time permitting) | 3:10pm – 3:25pm

• Oregon Title IX Lawsuit
  • This case is one of the first legal challenges to unequal access to NIL opportunities as a violation under Title IX of the Education Amendments of 1972 (Title IX). More broadly, this litigation raises Title IX compliance concerns for any institution with an intercollegiate athletics program in the era of NIL. The named plaintiffs are female student athletes on the University of Oregon’s beach volleyball and rowing teams. The plaintiffs allege the university is violating Title IX through its “vastly superior treatment” of football players in comparison to female student athletes. With respect to NIL, the lawsuit alleges the university provides its male athletes “much greater” NIL opportunities through Division Street, its NIL collective, and Opendorse, the Oregon Ducks NIL Marketplace. Though Division Street is a legal entity separate from the university, the lawsuit attempts to hold the university responsible for the disproportionate opportunities allegedly afforded to male athletes through the collective
• State of Tennessee and Commonwealth of Virigina v. NCAA
  •  In response to news breaking around the NCAA’s investigation into the University of Tennessee regarding alleged NIL violations the State of Tennessee and Commonwealth of Virigina have filed a federal lawsuit seeking a declaration that

V. The NCAA’s NIL recruiting ban violates section 1 of the Sherman Act | 3:25pm – 3:40pm

• Gervon Dexter, Sr. v. Big League Advance (we are the firm actively litigating this case. I will merely mention this case, but I will not actually comment on the case.)
• Time permitting, display a redacted NIL contract and discuss legal issues contained throughout the agreement
  • Legal issues to discuss
    • License to use NIL
    • Duration of the contract
    • Obligations under the contract
    • Dispute resolution
    • Indemnification