NIL Questions and any Trademark folks on line?

[blion72]

there seems to be a lot of confusion on this topic, and would like to hear anyone who knows this subject. I think more than one legal expert has referred to NIL as part of trademark law. From a business standpoint, the trademark guidance we have gotten in our business is as follows:

• If you have a trademark and want to ensure you protect it you should:
  • Register with the USPTO
  • Federal protection is from the Lanham Act (15 USC and Federal Regs under Title 37)
  • Make sure you protect and enforce the use of your mark
• For those who do NOT register federally, your protection goes to:
  • State common law
  • Possibly state statute in some cases
  • Civil trademark litigation would go through the circuit courts - and I think their standards are very different (i.e. 9th circuit vs 5th circuit).
  • In either case Federal protection would pre-empt state protection in a civil litigation - our company won two cases like that.
• NIL Trademark could apply to:
  • Player who has NIL independent of any school. This is their true NIL.
    • For the trademark to be valid, it would have to be NAME, their IMAGE and/or LIKENESS
    • There can be no NIL value unless it is directly attached to an actual person. That would mean it cannot apply to a generic category such as "any offensive lineman who is playing for Univ of Texas". If the image is a player in a UTexas uniform, then that would be the trademark of UTexas, not the person.
  • The schools have considerable trademark value from their decades of brand identity. These trademarks have large value, and independent of player NIL.
  • There may be player NIL that changes when combined with the trademark of the school. So is CJ Stroud NIL enhanced by putting on OSU uniform? Probably yes, which adds some complexity to the questions.

Totally distinct from the player NIL under trademarks, there is the relationship between the NCAA and the universities. I believe this comes under contract law. I recall during the JoePa situation, almost everyone told us that there was no way to attack the contract between NCAA and Penn State. This opens up the questions re the NCAA:

• The NCAA has made temp rules that prohibit the use of NIL to induce or recruit players to attend any school
• The NCAA has not regulated NIL, they have just indicated that it cannot be used for recruiting. That seems like an important point.
• Key question, why does the NCAA not have the right under the contract they have with the member schools, to state this recruiting limitation?
• The NCAA could easily enforce this with technology and automation - they could find cheaters very quickly.

Finally, we have heard we are waiting for STATE legislatures to pass laws to regulate NIL. I am not sure what we would want them to do.

• State legislatures do not appear to have much room here. Are they going to amend their trademark statutes if they even exist?
• How can a state move outside federal legislation that exists?
• States already have a body of common law and possible statutes with all kinds of precedent. This would be tough act?
• States would not be able to address the NCAA contract relationship with the member schools, so how could they come in and write laws to govern NCAA rules?

I am struggling to see how Univ of Texas is not a direct violation of NCAA rules, and actually is not even NIL. Anyone with expertise in this area?

 

[o_WeAre]

It would be very difficult to argue against any NIL value that some legal entity is willing to pay. Some organization may deem the value of a Texas OL athlete at a base of 50k. What argument is there that an OL once playing for UT does not have a 50k value?

 

[LionJim]

It would be very difficult to argue against any NIL value that some legal entity is willing to pay. Some organization may deem the value of a Texas OL athlete at a base of 50k. What argument is there that an OL once playing for UT does not have a 50k value?

In other words, no salary cap.

 

[blion72]

It would be very difficult to argue against any NIL value that some legal entity is willing to pay. Some organization may deem the value of a Texas OL athlete at a base of 50k. What argument is there that an OL once playing for UT does not have a 50k value?

I think the argument would likely be that the value is being set without knowing WHO the player is, which means that there is no NAME, or IMAGE or LIKENESS of a player. How can you have NIL value when there is no person behind it?

it also looks like the NCAA contract with the member schools would allow them to set rules about player eligibility, pay for play and still allow the player to earn NIL on their own. can NIL rights pre-empt any rules the NCAA member schools want the NCAA to enforce on their behalf?

 

[PSUJam]

I think the argument would likely be that the value is being set without knowing WHO the player is, which means that there is no NAME, or IMAGE or LIKENESS of a player. How can you have NIL value when there is no person behind it?

it also looks like the NCAA contract with the member schools would allow them to set rules about player eligibility, pay for play and still allow the player to earn NIL on their own. can NIL rights pre-empt any rules the NCAA member schools want the NCAA to enforce on their behalf?

I'm sorry you think the NCAA still has authority over anything. It's over blion. Over and done.

 

[o_WeAre]

I think the argument would likely be that the value is being set without knowing WHO the player is, which means that there is no NAME, or IMAGE or LIKENESS of a player. How can you have NIL value when there is no person behind it?

it also looks like the NCAA contract with the member schools would allow them to set rules about player eligibility, pay for play and still allow the player to earn NIL on their own. can NIL rights pre-empt any rules the NCAA member schools want the NCAA to enforce on their behalf?

Yes, but the moment that they are an OL at Texas, they attain that value.

Just like the moment you are the #1 draft pick, you attain that value. The #1 draft pick carries a certain contractual value. Someone will fulfill that value and when they do, their Name, Image, and Likeness also now carries the value of a #1 draft pick. It doesn't matter who fills it, that is the base value of a #1 draft pick. Some with specific traits or personalities may punch above the base value but by virtue of being the #1 pick, they have a minimum NIL of the #1 pick.

So too is the Texas OL base NIL value. Doesn't matter who fulfills it, but when they do, they now attain the NIL value (at minimum) of a Texas OL. Same with the starting QB at PSU where there are 700k alum and millions of fans. We just have not established that NIL value yet, it is still growing until the full NIL apparatus is in place. That time is coming though.