American Top Team (ATT), a South Florida-based mixed martial arts gym, made headlines in early July when it offered all 90 scholarship football players from the University of Miami name, image and likeness contracts—a potential investment of $540,000. The one-year deals reportedly require the players to endorse the brand once a week through their social media accounts, personal appearances and other marketing vehicles.
On the surface, it seems like a no-brainer for a college kid to post a few videos and collect a $500 check each month. But a clause in the contract, giving the MMA gym the ability to use the content created with the athlete in perpetuity, should make some players think twice before signing on the dotted line. Of course, that assumes they understand the terms and obligations. “The lack of representation for college athletes has always been a problem. Now it’s just taking on a new form,” Tim Nevius (founder, College Athlete Advocacy Initiative) said.
Our Take: To be clear, it is not uncommon for a brand to own the content it creates with an influencer in perpetuity, but there is a difference between copyright and a right of publicity. “A brand could own the content, but they don’t own the talent’s NIL and no longer have the rights to commercialize it,” Doug Fillis (founder, Accelerate Sports Ventures) explained. That is typically how it works once the endorsement deal term has ended.
In this case, American Top Team is prohibited from modifying the content created and from making representations that a relationship between the parties exists beyond the deal’s term. But there is nothing in the contract preventing ATT from promoting the past existence of said agreement after the deal expires either (think: reposting a video on social).
In the pro sports world, it is highly unusual for an advertiser or a brand to be able to use content created with an athlete after the deal has ended. In fact, Fillis recalled a trio of contracts he negotiated while at Endeavor (one for an NFL player, one for an NBA player and one for a USWNT player) and pointed out that the first bullet on each reads: During the term, Company’s ability to use Talents NIL must be pre-approved by Talent in writing, in each such instance. All rights in and to Talent’s NIL remain solely and exclusively Talent’s in perpetuity.
“So, right off the bat we say we’re going to do content with you, [and] you can utilize that content for promotional purposes for the term of the contract,” he said. “And if you ever want to use that content—which you own—again, you have to come back to us and get approval.” Naturally, the brand would also need to come to terms on further compensation.
The prospect of American Top Team being able to use the content created in perpetuity had one prominent athletic director calling the offer “a terrible deal” for the Hurricanes’ top players. “For the back-up left guard it is fine. Go ahead and take the $6,000 dollars,” he said. “But for Miami’s quarterback [D’Eriq King], it makes zero sense.” The presumption is King’s name, image and likeness is worth more than $6,000 today and will continue to have value beyond the end of the deal term (at which point he would no longer be getting paid, but ATT could continue using the videos created).
There is also the opportunity cost King ought to consider. “I have advised clients to consider the highest value they can get for the least amount of time and effort—particularly because they are already working two full-time jobs [as a student and a football player],” Nevius said. Remember, the time spent on one project with one brand, even if not exclusive, limits the athlete’s ability to engage in other opportunities. And there are weekly obligations with the ATT deal.
While there is a chance King will short-change himself if he signs the ATT contract as is, it is hard to argue the player should walk away from what looks to be easy money. The deal does not prevent the Miami quarterback from aligning with another training, MMA or fitness company once the one-year term has expired (so it’s not as if he would be losing out on any opportunities), and there is no guarantee his name, image and likeness will have value down the line.
While uncommon within the athlete endorsement ecosystem, there is nothing inherently wrong with ATT seeking the right to use content created during the contract period in perpetuity. Brands are always going to seek the best terms they can get. The problem is, unlike professional athletes, who have professional representatives to review contracts and push back on unfavorable terms, many college athletes (in general, not just Miami players) are negotiating their own NIL deals and doing so without a true understanding of the associated risks, rewards and obligations.
Nevius blames the NCAA for creating an environment where the athletes are at a disadvantage. “Bad deals are largely due to lack of representation for athletes in a system that has denied them access to their commercial value for years. Now that the rules have changed, there is a steep learning curve for everyone, especially the athletes,” he said.
It is not clear just how many Hurricanes intend to take ATT’s offer. The company did not respond to our inquiries and the school declined to comment.
For what it’s worth, American Top Team founder Dan Lambert (through his company Bring Back) has since helped to broker a similar deal between Yummy Crypto and the Miami men’s basketball team.