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NCAA Athlete Influencers Face Risks Even With Modest NIL Deals

Mega name, image, and likeness deals have been in the news, featuring student-athletes who monetized their name, image, or likeness for hundreds of thousands of dollars—or more. There are other student-athletes, although not as well-known, who should be included when considering NIL opportunities.

These student-athletes can deliver content, engagement, and capitalize on their NIL rights like their better-known counterparts. They are also subject to the same requirements and need the same protections when navigating the NIL landscape.

In 2020, the NCAA’s Board of Governors Federal and State Working Group Final Report and Recommendations recognized the significance of social media “influencer” marketing, digital content creation, and distribution for student-athletes. The report stated that an important commercialization opportunity for all college students is to become a social media “influencer.”

An influencer in the digital age is an individual who creates and shares content on social media platforms like Instagram and TikTok with a virtual audience within their specific niche.

When an influencer acquires a following on social media, it becomes possible for them to engage in influencer marketing, such as modeling or endorsing, or promoting a product in exchange for money or some other thing of value—such as samples of the product the student-athlete is advertising.

The report further noted that influencers are often prized as marketers because of the direct line of communication they can have with their followers. That means they are often more effective than traditional advertising in driving brand engagement.

The report correctly observed that these commercial opportunities are not limited to influencers with large follower counts. Brands are interested in partnering with micro-influencers with follower counts in the hundreds or thousands, not millions. This is particularly true in niche areas such as sports apparel or equipment.

According to Influencer Marketing Hub, a nano-influencer is someone with less than 10,000 followers. In comparison, a micro-influencer is someone with between 10,000-100,000 followers. Both nano- and micro-influencers are small-batch and may be hyper-local, giving them a cachet for marketing purposes.

Following are some considerations that also apply to aspiring nano- or micro-influencer student-athletes.

Know Your Value

Clicks are king in a content or curated economy. Nano- or micro-influencers can more directly connect to their followers, driving their success. There are online tools available to help a student-athlete understand what sort of engagement the student-athlete can deliver as an influencer, such as compensation calculators that evaluate the value of clicks and views.

Look Before You Leap Into a Contract

Contracts create enforceable obligations and relationships and the potential consequences for violating a contract can be significant—and costly. The time to evaluate the obligations of all parties—and to seek legal advice—is before you sign the contract.

There are basic terms to consider, including the term or duration of the agreement and whether the agreement is exclusive so that the student athlete cannot represent multiple clients or brands.

Get Advice

All student-athletes should know whether the proposed arrangement is in harmony with the NCAA’s and the student-athletes school’s constraints or policies. Likewise, even if a student-athlete is a nano- or micro-influencer, they are subject to state and local laws. A student-athlete who is a fledgling marketer would also be wise to obtain federal and state tax advice from an appropriate professional, so the student-athlete (or the student-athlete’s parents) don’t have a surprise at the end of the tax year.

Don’t Overlook the FTC’s Recent Guidance

The FTC recently updated its guidance for social media influencers relevant to student-athletes engaging in promotional activities. All student-athletes should know the disclosure requirements for endorsements, sponsorships, and partnerships with other brands and companies.

Student-athletes need to understand what constitutes a “substantial material partnership”—and that it may include work done for family members or work done in exchange for free products. There are disclosure requirements to foster transparency and to avoid misleading the public about any potential bias or motivation.

The NIL landscape doesn’t solely belong to the big names or the big deals that make the news. NIL also provides profound opportunities for the nano- and micro-influencer student athletes that should not be overlooked. These student athletes require the same guidance and protection, if not more.

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