IP Services
Name, Image & Likeness (NIL) Matters
Brand Protection, Entity Structuring & Licensing for Collegiate and Professional Athletes — Florida
An athlete’s name, image, and likeness is a commercial asset — one that, since July 1, 2021, college athletes have been free to license, and that professional athletes have always owned but rarely protected with the same rigor as the companies that pay to use it. The legal framework around that asset has changed more in the last five years than in the previous fifty: state NIL statutes, the Supreme Court’s decision in Alston, the NCAA’s interim policy, the House v. NCAA settlement and its revenue-sharing cap, the College Sports Commission’s NIL Go clearinghouse, two presidential executive orders, and federal legislation now moving through the Senate. Each layer adds an opportunity — and a compliance obligation — for the athlete.
Our Miami intellectual property attorneys help collegiate and professional athletes, their families, and their advisors treat NIL as what it is: a brand business. That means the right entity structure (an operating company for the deals, a licensing company for the brand), registered trademarks in the athlete’s name, nickname, and logo, and licensing agreements that keep the athlete in control of how — and for how long — a sponsor, collective, school, or league may use the athlete’s identity.
What NIL Rights Are — and Where They Come From
The right of publicity, the Lanham Act, and the trademark register
“NIL” is not a single statute. It is shorthand for a bundle of legal rights that together give a person control over the commercial use of his or her identity. For a Florida athlete, the bundle has three principal sources, each with its own scope and remedies:
| Source of Authority | What It Protects | Remedies Available |
|---|---|---|
| Right of publicity — § 540.08, Fla. Stat., and Florida common law | Prohibits publishing, printing, displaying, or otherwise publicly using a person’s name, portrait, photograph, or other likeness for trade, commercial, or advertising purposes without express written or oral consent of the person (or an authorized representative or licensee). Survives the athlete for 40 years after death. | Injunction; damages for any loss or injury, including a reasonable royalty; punitive or exemplary damages |
| False endorsement — Lanham Act § 43(a), 15 U.S.C. § 1125(a) | Prohibits any use of a person’s name, likeness, voice, or persona that is likely to cause confusion as to the person’s sponsorship, affiliation, or approval of goods or services — the federal claim used against unauthorized “endorsements” in advertising, video games, and merchandise. | Injunction; defendant’s profits; damages; costs; attorney’s fees in exceptional cases (15 U.S.C. § 1117(a)) |
| Trademark registration — Lanham Act §§ 1, 2(a), 2(c); Chapter 495, Fla. Stat. | Registers the athlete’s name, nickname, signature, logo, or catchphrase as a source identifier for specific goods and services. Section 2(c) bars anyone else from registering a living individual’s name, portrait, or signature without that person’s written consent; § 2(a) bars marks that falsely suggest a connection with the athlete. | Nationwide (or Florida) presumptive rights; injunction; profits and damages; treble damages and attorney’s fees under § 495.141 or, federally, in exceptional cases; customs recordation; marketplace takedown programs |
These rights belong to the athlete personally from birth — no school, league, or association grants them. What the collegiate rules described below regulate is not whether the athlete owns the right, but whether an athlete can exploit it and remain eligible to compete. That distinction matters when structuring the athlete’s business: the right of publicity can be licensed (and, in Florida, consent can be given by an authorized representative), the trademarks can be owned by a company, and the resulting revenue can flow through an entity — all without the athlete surrendering the underlying right.
The Legal Authority for Collegiate NIL
From Florida’s first-in-the-nation statute to the House settlement and federal legislation
Collegiate NIL exists today because the rules that once prohibited it were dismantled — by state legislatures, by the courts, and finally by the NCAA itself under the pressure of antitrust litigation. Florida was the state that started the sequence. The key authorities, in order:
| Date | Authority | What It Did |
|---|---|---|
| June 12, 2020 | Florida SB 646 — Ch. 2020-28, Laws of Fla.; § 1006.74, Fla. Stat. | First state NIL statute with an operative date (July 1, 2021), forcing the NCAA’s hand. Guaranteed college athletes the right to earn NIL compensation and to retain professional representation. |
| June 21, 2021 | NCAA v. Alston, 594 U.S. 69 (2021) | Unanimous Supreme Court held that NCAA limits on education-related benefits violate § 1 of the Sherman Act; Justice Kavanaugh’s concurrence signaled that the NCAA’s broader compensation restraints were equally vulnerable. |
| July 1, 2021 | NCAA Interim NIL Policy | NCAA suspended its NIL prohibitions nationwide. Athletes may engage in NIL activity consistent with state law and school policy; pay-for-play and recruiting inducements remain prohibited. |
| February 16, 2023 | Florida HB 7B — Ch. 2023-4, Laws of Fla. | Repealed most of Florida’s original statutory restrictions (which had become a competitive disadvantage), leaving the athlete’s rights governed by NCAA and conference rules, and retaining the financial-literacy and institutional-liability provisions of § 1006.74. |
| July 11, 2024 | Johnson v. NCAA, 108 F.4th 44 (3d Cir. 2024) | Held that college athletes may be “employees” under the Fair Labor Standards Act, to be determined under an economic-realities test; the case remains pending in the Eastern District of Pennsylvania. |
| June 6, 2025 | House v. NCAA settlement approved (N.D. Cal.) | $2.576 billion in back damages to athletes who competed from 2016 forward, paid over ten years; schools permitted to share revenue directly with athletes beginning July 1, 2025, subject to an annual cap (about $20.5 million per school in 2025–26, rising to roughly $32.9 million by 2034–35); scholarship limits replaced by roster limits. Objectors’ appeals remain pending in the Ninth Circuit. |
| July 1, 2025 | College Sports Commission (CSC) and NIL Go | Created by the defendant conferences to enforce the settlement: every third-party NIL deal of $600 or more must be reported through the NIL Go clearinghouse (operated with Deloitte) and cleared before it is performed. |
| July 24, 2025 | Executive Order 14332, “Saving College Sports” | Directed the Department of Labor and NLRB to clarify athletes’ employment status and set federal policy against third-party pay-for-play, while preserving legitimate brand endorsements. |
| April 3, 2026 | Executive Order 14400, “Urgent National Action to Save College Sports” | Effective August 1, 2026: directs federal agencies to condition funding on institutional compliance with governing-body rules, bars federal funds from being used for NIL or revenue-sharing payments, calls for a national athlete-agent registry with commission protections, and standardizes eligibility and transfer rules. |
| June 18, 2026 | S. 4668, Protect College Sports Act of 2026 | Reported out of the Senate Commerce Committee 19–9 and pending on the Senate floor. Would preempt state NIL laws, grant a conditional antitrust safe harbor, codify the $600 reporting rule, certify and cap NIL agents, and extend the revenue-sharing system beyond the settlement’s 2035 expiration. The House’s SCORE Act (H.R. 4312) was withdrawn twice without a vote. |
The practical result is a layered system. The athlete’s rights come from state law; the athlete’s eligibility to exercise them comes from NCAA rules and the House settlement as enforced by the College Sports Commission; the school’s ability to pay the athlete directly comes from the settlement’s revenue-sharing provisions; and the whole structure is under active review by the executive branch and Congress. Every NIL agreement we draft is written to survive a change in any one of those layers.
NCAA Guidance and the College Sports Commission
The rules that determine whether a deal keeps the athlete eligible
Since the interim policy took effect, the NCAA’s guidance has been consistent on three points: NIL compensation must be for actual use of the athlete’s name, image, or likeness; it may not be a disguised inducement to enroll at, remain at, or transfer to a particular school; and the athlete must comply with the school’s disclosure requirements. The House settlement and the NCAA’s post-settlement bylaws converted those principles into a formal clearance process administered by the College Sports Commission:
| NIL Go Requirement | What the Rule Says | Practical Effect |
|---|---|---|
| Reporting threshold | Any NIL agreement — or series of agreements with the same payor — with total value of $600 or more must be reported through NIL Go, generally within five business days of signing and before the athlete performs or is paid. | Virtually every sponsorship, collective, and appearance deal must be submitted; tracking cumulative payments from a single payor is the athlete’s responsibility. |
| Associated-entity review | Deals with boosters, collectives, and other “associated entities or individuals” receive heightened scrutiny. | Collective deals are cleared only where the collective is acting as a genuine marketing intermediary for goods or services offered to the public. |
| Valid business purpose | The payor must be using the athlete’s NIL to promote goods or services offered to the general public for profit. | A payment for “being a member of the team,” or an appearance at an event whose only purpose is to raise money to pay athletes, is not a valid business purpose. |
| Range of compensation | Compensation must fall within a range commensurate with what similarly situated individuals receive for comparable NIL use, assessed by Deloitte’s fair-market-value model. | Above-range deals are flagged and may be denied; the athlete may revise the deal, cancel it, or request neutral arbitration. |
| Consequences | Performing under a deal that was not cleared, or misreporting a deal, exposes the athlete to loss of eligibility and the school to settlement-enforcement penalties. | Clearance should be obtained before any performance or payment — not documented after the fact. |
The CSC’s own data shows how this works in practice. Through July 1, 2026, NIL Go had approved 34,195 deals worth $355.24 million and declined to clear 1,812 deals worth $89.85 million — an approval rate of roughly 95 percent by count, but with the denied deals carrying a far higher average value. Forty-one percent of submissions were resolved within 24 hours and 63 percent within seven days of a complete submission, so a properly documented deal rarely delays a launch; an incomplete one does. Separately, schools may now pay athletes directly under the revenue-sharing cap through the College Athlete Payment System, and those institutional payments are governed by the school’s own agreement with the athlete rather than by NIL Go.
Three groups of athletes face additional NCAA-side constraints that shape every deal we structure. Athletes under 18 need a parent or guardian to sign, and their contracts are voidable unless the formalities are observed. International athletes on F-1 student visas generally cannot perform NIL services in the United States, so their deals must be built around passive licensing of existing rights — an area where a properly structured licensing company is not merely helpful but essential. And high school athletes in Florida may earn NIL compensation under the FHSAA policy adopted in June 2024, but may not use their school’s name, logo, or uniform without written consent, may not accept collective or recruiting-driven payments, and may not endorse alcohol, tobacco, gambling, cannabis, weapons, or adult products.
Florida’s NIL Framework
What the statute requires now — and what it no longer restricts
Florida’s current statute, § 1006.74, Fla. Stat., as amended by Chapter 2023-4, is deliberately lean. After the 2023 amendments, the detailed contract restrictions of the 2020 law were removed, and the section now does three things: it requires every state university, Florida College System institution, and state-aided private institution to provide its athletes two separate financial-literacy and entrepreneurship workshops of at least five hours each before graduation, free of any marketing by financial-product providers; it shields institutions, coaches, and staff from liability for damage to an athlete’s NIL earning capacity resulting from routine athletic decisions such as playing time and position; and it directs the Board of Governors and State Board of Education to adopt implementing rules. The 2025 effort to add high school NIL rules, a five-percent cap on agent fees, and a public agent database to the statute (HB 981) died in committee, so those subjects remain governed by FHSAA policy, the athlete-agent licensing provisions of Part IX of Chapter 468, and — for attorneys — the Rules Regulating The Florida Bar.
What Florida offers the athlete instead is a favorable environment for the business side of NIL: no state income tax on the revenue an athlete’s operating company earns, a right-of-publicity statute (§ 540.08) that expressly recognizes consent given by an authorized representative and provides for royalty-based and punitive damages, and a state trademark registration system under Chapter 495 that issues in days and carries its own attorney’s-fee provision (see our Trademark Matters summary). A Florida athlete who structures correctly captures all three.
Structuring the Athlete as a Business: Operating Company, Licensing Company & Trademarks
Why the brand should be owned by a company — and a different company than the one signing the deals
The single most common mistake we see in NIL practice is an athlete signing sponsorship, collective, and appearance agreements in his or her own name, with no entity, no registered trademarks, and no written license of the athlete’s own publicity rights. Every dollar then flows to the athlete as self-employment income, every contract exposes the athlete’s personal assets, and the brand — the thing the sponsor is actually paying for — has no owner other than a twenty-year-old with a four-year eligibility clock. We recommend, and build, a three-layer structure:
| Layer | What It Is | What It Holds | Why It Matters |
|---|---|---|---|
| 1. Operating Company | A Florida LLC (often taxed as an S corporation once income justifies it) through which the athlete conducts NIL business. | Sponsorship, endorsement, appearance, camp, content-creation, and merchandise contracts; bank accounts; payroll for the athlete and any staff; vendor and agent agreements. | Separates business liability from personal assets; provides a contracting party that survives transfer, graduation, and turning pro; allows deductible business expenses; simplifies multi-state “jock tax” reporting; and gives sponsors a professional counterparty. |
| 2. Licensing (IP Holding) Company | A second Florida LLC — owned by the athlete or a family trust — whose only business is to own and license intellectual property. | Registered trademarks in the athlete’s name, nickname, logo, signature, and slogans; copyrights in content and designs; domain names and social-media handles; and an exclusive license (or assignment, where permitted) of the athlete’s right of publicity under § 540.08. | Keeps the brand out of reach of the operating company’s creditors and lawsuits; licenses the brand to the operating company and directly to third parties on the athlete’s terms; enables passive licensing income for international athletes who cannot perform services; supports estate and family planning; and creates an asset that can be valued, borrowed against, or sold. |
| 3. Trademark Registrations | Federal (USPTO) and Florida (Chapter 495) registrations owned by the licensing company. | The athlete’s name and nickname; stylized logo and monogram; signature; catchphrases and hashtags — in the classes that match the athlete’s actual and planned commerce (typically Classes 25 apparel, 41 entertainment and sports services, 9 digital content, 35 endorsement and retail services, 16 printed matter, and 28 sporting goods). | Section 2(c) of the Lanham Act means only the athlete (or the athlete’s company, with written consent) can register the athlete’s name — and a registration blocks everyone else, including collectives, fan merchandisers, and former sponsors. Registration unlocks Amazon Brand Registry and marketplace takedowns, customs recordation, and the presumptions and fee-shifting remedies described in our Trademark Matters summary. |
How the layers work together
The licensing company owns the marks and holds the athlete’s publicity license. It grants the operating company a written license — with the quality-control provisions that trademark law requires to keep the marks valid — to use the brand in the operating company’s contracts. When a sponsor wants the athlete’s name on a product, the sponsor signs a sublicense with the operating company (or, for a pure merchandising deal, directly with the licensing company), and the operating company signs the services agreement covering the athlete’s appearances, posts, and performance obligations. The athlete signs once: an employment or services agreement with the operating company, and the publicity license to the licensing company. Royalties flow to the licensing company; service fees flow to the operating company; and if a sponsor defaults, a collective folds, or a personal-injury claim arises from a camp, the brand itself is not on the table.
Why the trademark registrations should come first
Trademark rights in the United States arise from use, but priority as against later users is fixed by the filing date, and an intent-to-use application can lock in that date before the first jersey is sold. An athlete’s name is at its most vulnerable in the window between the first viral moment and the first registration — which is precisely when unlicensed merchandise appears. Because the USPTO will refuse a third party’s application for a living athlete’s name without the athlete’s written consent under § 2(c), and because Florida’s Chapter 495 registration issues within days and carries the § 495.141 attorney’s-fee remedy, we typically file the Florida application and an intent-to-use federal application together, in the licensing company’s name, before the first NIL deal is signed. Trademark registration also travels: unlike a collegiate NIL deal, which ends with the athlete’s eligibility, a registration follows the athlete into the professional ranks and beyond.
Key Considerations in Every NIL Agreement
What we negotiate before the athlete signs
An NIL agreement is a licensing agreement first and a services agreement second, and it should be drafted with the same care as any trademark or publicity license. The provisions that most often determine whether a deal turns out well for the athlete:
- Scope and term of the license. Exactly which rights are licensed (name, image, likeness, voice, signature, biographical facts, social handles), in which media and territories, for how long, and whether the sponsor’s right to use existing content survives termination. Collegiate deals should end on transfer, loss of eligibility, or a professional signing, and should never grant a perpetual license to content.
- Exclusivity and category conflicts. Category exclusivity should be narrow and priced; every exclusive should be checked against the school’s own sponsorship contracts (which may bar competing brands on game day or in team facilities), the conference’s media rights, and — for professionals — the league’s and players’ association’s group-licensing programs.
- Compliance and clearance. A representation that the deal serves a valid business purpose and is within the range of compensation, a condition precedent that the deal clear NIL Go (or the school’s disclosure process) before performance, and a right to amend or terminate without penalty if it is denied — so the athlete is never forced to choose between a contract and eligibility.
- Ownership of content and the athlete’s marks. The sponsor should receive a license, not ownership, of content featuring the athlete, and should acknowledge that the athlete’s licensing company owns the athlete’s name and marks and will not apply to register them.
- Approval, morals, and reputation clauses. Athlete approval rights over creative, mutual (not one-sided) morals clauses, and a clear statement that the athlete does not endorse the product beyond the specific campaign.
- Payment mechanics and taxes. Payment to the operating company, not the individual; defined milestones; late-payment interest; gross-up or allocation for state taxes in the sponsor’s jurisdiction; and Form 1099 treatment consistent with the entity structure.
- Agent and advisor regulation. Confirmation that every agent or marketing representative is licensed under Part IX of Chapter 468 (or the applicable state’s athlete-agent act) and, if the Protect College Sports Act becomes law, certified under the federal registry — with a fee structure that anticipates the five-percent caps proposed in both Tallahassee and Washington.
- House settlement claims and revenue-sharing agreements. Athletes who competed in Division I from 2016 forward may have a back-damages claim under the settlement, and current athletes are being asked to sign revenue-sharing agreements with their schools that contain their own NIL licenses, buyout provisions, and transfer consequences. Those agreements should be reviewed with the same care as a third-party deal.
From Campus to the Pros: NIL for Professional Athletes
The rights are the same; the counterparties are bigger
Once an athlete signs a professional contract, the NCAA framework falls away, but the NIL asset becomes more valuable and the licensing environment more crowded. The league owns its marks and the team’s; the players’ association controls group licensing of players’ names and likenesses in trading cards, video games, and league-branded merchandise through programs such as NFL Players Inc. and OneTeam Partners, the NBPA’s licensing arm, and MLB Players Inc.; and the standard player contract and collective bargaining agreement reserve certain categories to the club and league. What remains — and it is substantial — is the athlete’s individual right to license his or her own name, image, likeness, signature, and personal marks for individual endorsements, personal merchandise, media, and business ventures.
For the professional, the structure described above matters even more: individual endorsement income should run through the operating company; the athlete’s personal marks should be registered in the licensing company’s name before the first signature-shoe negotiation; group-licensing participation should be reconciled with individual deals so the athlete is not licensing the same rights twice; and, because Florida’s right of publicity survives the athlete for 40 years, the licensing company should be integrated with the athlete’s estate plan. Athletes relocating to Florida for tax reasons should also confirm that their entities, contracts, and domicile are structured to support that position.
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