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Name, Image, and Likeness Policy Analysis

UNH Innovations
Danielle Heine
Spring 2022

1. Introduction
On July 1, 2021, the NCAA began allowing college athletes the right to benefit from their name,
image, and likeness (NIL). Each Member University was instructed to write their own NIL
policy in accordance with state laws. There is currently no NIL law in New Hampshire.
Institutional policies consistently prohibit “pay-for-play”, recruiting inducements, endorsement
of inappropriate products, as well as activity that conflicts with Athletic Department contracts.

Institutions provide varying levels of support to student-athletes. Some institutions prohibit their
staff and faculty from being involved in NIL activity, while other institutions have contracted
with third parties to facilitate NIL opportunities.

Policies also vary in management of marks, logos, slogans, uniforms, branded equipment, or
other university intellectual property, collectively referred to as “IP”. Conservative policies
prohibit athletes from using university facilities, posting IP on social media, or producing
merchandise using IP. In contrast, other universities allow student-athletes to participate in
endorsements while wearing trademarked logos or team issued uniforms. Some universities have
invested in mechanisms for co-branding, in which an athlete, a brand, and the university work
together to sell products such as jerseys or sports cards.

2. Abstract
Opportunities exist to improve the efficacy and clarity of UNH’s NIL policy. Adding the
procedure for approval to use university IP, as well as relocating the social media policy will
provide athletes with the resources they need to properly pursue a larger range of NIL
opportunities. UNH should also consider contracting with a group licensing company such as
The Brandr Group (TBG) to producing co-branded merchandise.

3. Methods
Data was collected by conducting customer discovery interviews with six compliance directors at
the following peer institutions:
- [University #1]
- [University #2]
- [University #3]
- [University #4]
- [University #5]
- [University #6]
3.1. Participant Considerations
Preliminary research collected data from the athletic and academic websites of twelve
potential peer intuitions. Ten institutions were contacted with inquiry emails, and six
interviews were conducted. The preliminary research considered:
- Status as a public or private institution
- Number of sponsored varsity sports
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- Sponsorship of football or hockey

- NCAA football subdivision
- Recent competition with UNH
This is the same criteria used to identify peer institutions in the Financial Review of UNH
Athletics released in January 2021. The preliminary research also collected any publicly
available NIL and licensing policies.

3.2. Of the six participants

- Four are Financial Review of UNH Athletics ‘peer institutions’
- Five are public institutions
- Five competed with UNH in the past two years
- Five sponsor football (three in the FCS)
- Four sponsor hockey
- Sponsor an average of 19 sports teams (UNH sponsors 20)

3.3. Content of Interviews

The interviews were conducted over Zoom for the duration of 20 – 35 minutes. The
institution representative was asked to explain the institution’s NIL philosophy and the
overall intention of their policy. The representative was then asked to explain the procedure
regarding the following components of NIL activity:
- Social media policy
- Mechanism for co-branding
- Merchandise sales policy

4. Results
4.1. Social Media Policy
Social media endorsement is the most common NIL activity at the six peer institutions and
UNH. Four of the six peer institutions have a procedure for athletes to use university IP in
NIL activity on social media. UNH’s policy prohibits athletes from using university IP,
including photos of themselves in uniform, for compensated social media posts.

[University #6] has the most lenient policy. [UNIVERSITY #6] student-athletes may post
sponsored content in their uniforms and team issued gear without asking for permission
ahead of time. The [UNIVERSITY #6] compliance department does not have the bandwidth
to monitor or enforce a policy prohibiting the use of university IP, so they choose to have a
policy that is athlete-friendly and realistically enforceable.

[University #4] prohibits the use of IP for social media endorsements but does not enforce
their policy due to lack of time and resources. [University #3] is the only institution that
expressed a mechanism for enforcing their policy. [UNIVERSITY #3] follows and monitors
the social media of their 250 student-athletes, much less than the over 500 athletes at the
other institutions.

[University #5] and [University #1] have procedures that protect the university’s interest by
ensuring the institution is compensated for association with their protected marks. At
[University #1], only athletic department sponsors can compensate an athlete for posting
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endorsements in their uniform on social media. At [University #5], companies can apply for a
corporate sponsorship agreement and pay the university for use of their marks. These
procedures have yet to be used by athletes at [University #5] or [University #1].

[University #2] has the most comprehensive procedure for disclosure, approval, and use of
university IP on social media. When an athlete discloses NIL activity on ARMS, they simply
check a box indicating that they will be posting in their uniform and upload the picture they
intend to use. If the company is not in direct competition with a [UNIVERSITY #2] athletics
sponsor, the photo is approved. [UNIVERSITY #2], unlike other institutions, does not
believe wearing the uniform while endorsing a product signifies that [UNIVERSITY #2]
endorses that product. In addition, [UNIVERSITY #2] does not intend to implement a policy
they are not capable of enforcing.

4.2. Mechanisms for Co-branding

In March 2022, [University #1] partnered with The Brandr Group (TBG), a brand
management and licensing agency. [University #1] is the only peer institution that currently
has a mechanism for co-branding. After Nike declined to co-brand with individual athletes,
[University #1]’s compliance department sought out TBG to provide their athletes with the
opportunity to group license. In the coming months, fans will be able to purchase official
[University #1] merchandise that financially benefits the institution and the athletes.

[UNIVERSITY #6] and [University #5] are trying to launch a mechanism for co-branding
by the fall of 2022.

4.3. Merchandise Sales Policy

[University #1] promotes the opportunity to produce merchandise using university IP by
providing their athletes with clear guidelines on their website. Athletes apply through the
trademark licensing office and using a co-branding licensed vendor. The website provides
athletes with a list of NIL licensees.

[University #5] and [UNIVERSITY #6] allow athletes to use university IP if they obtain a
trademark licensing agreement.

[UNIVERSITY #2] and [University #4] do not have specific guidelines in their policy for
creating merchandise or seeking a license. Both compliance directors predict the athletes
would be treated the same as any other student.

[UNIVERSITY #3] is the only institution that expressly stated the athletes would not be
permitted to create merchandise through the licensing department.

5. Recommendations
5.1. Social Media Policy
5.1.1. Revision of Policy Placement
Social media endorsements are the most common form of NIL activity at UNH. The
social media policy for NIL is currently located on the athletics website under a different
tab than the NIL policy. The social media policy states, “Posts that include UNH IP may
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not be permitted where personal social media is being used for NIL endorsements”. This
is the last sentence of an over 800-word social media policy. To ensure athletes and
recruits can easily access important information, the social media policy for NIL should
appear in the NIL policy.

5.1.2. Consideration of Policy Alternatives: [UNIVERSITY #6]

[UNIVERSITY #6]’s policy, which allows unregulated use of IP for social media
endorsements, is low maintenance and appealing to athletes. Their compliance director
suggests the university benefits from the use of IP because it builds their brand and
increases recruit interest.

It is also reckless. There is a risk that brands will take advantage of this policy and benefit
from association with a university’s mark while paying a fraction of the cost and not
compensating the university. [UNIVERSITY #6]’s policy encourages leveraging of the
university property as opposed to athlete NIL.

5.1.3. Consideration of Policy Alternatives: [UNIVERSITY #2]

[UNIVERSITY #2]’s policy addresses the need to protect university interests while
allowing athletes to post in their uniforms during NIL activity. The policy states, “The
presence of marks on a team uniform will not generally be considered as implying
endorsement or sponsorship”. To enforce this policy, the compliance department
approves photos on ARMS during the disclosure process.

UNH should consider if a policy like this would place an undue burden on the
compliance department because each request would need to be reviewed and approved.
UNH should also consider if it agrees with [UNIVERSITY #2]’s philosophy that
uniforms do not generally indicate university sponsorship.

5.1.4. Consideration of Policy Alternatives: [University #1] and [University #5]

[University #1] and [University #5]’s policies for obtaining permission provide the
athlete with resources for seeking approval. [University #1] requires a trademark
agreement with an athletic department sponsor and [University #5] requires a corporate
sponsorship agreement. These mechanisms ensure the university is compensated for use
of their brand, while giving the athlete guidelines on how to seek approval.

UNH’s policy states athletes, “must receive prior approval from appropriate UNH
authorities”. It would be helpful to include the name and contact information of the
appropriate authorities as well as the appropriate mechanism for seeking approval.
Policies that give detailed options appeal to athletes and potential recruits by
demonstrating support for NIL activity.

5.2. Co-Branding Mechanism

A partnership between UNH and TBG has the potential to generate revenue for the institution
and student-athletes.
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TBG suggests a 50/50 royalty split between the institution and the student athletes on
products co-branded with athlete NIL and university IP. TBG receives 30% of the student
athlete revenue as compensation for management and administrative services. There is no
annual or additional fee to partner with TBG.

5.3. Merchandise Sales Policy

[University #1] markets their policy to athletes by providing clear guidelines for producing
merchandise. The licensing department website has a webpage titled, “Name Image Likeness
(NIL) Use of University mark and Reference Requests”. The webpage states, “Student
athletes who would like to produce merchandise to monetize likeness alongside [University
#1] University marks are simply required to use a current licensee who also maintains the
Name Image Likeness licensure, a reduce co-branded rate”. The website includes a list of ten
“name, image, and likeness licensees”.

[University #1] does not have a more advanced mechanism for creating merchandise than
UNH currently has. They have platforms that publicly educate and advocate for the correct
procedures to take advantage of opportunities associated with NIL.

For example, if a UNH soccer player plans to host a summer camp, they would pay the rental
fees to use the fields and title the camp with their last name. The soccer player, like any
student at the university, could apply for shirts to be made by an approved vendor that are
designed with the name of the camp alongside university IP. The shirts could then be
distributed to attendees of the camp.

UNH’s current NIL policy does not address any mechanisms for seeking approval to create
merchandise. The policy that athletes, “must receive prior approval from appropriate UNH
authorities”, should include guidelines for properly creating merchandise.

6. Conclusion
Peer universities take various approaches to manage university IP in NIL activity. UNH’s social
media policy is a conservative approach relative to other institutions. It is worth considering an
adjustment that would make the policy more appealing to athletes and recruits. Options such as
requiring a corporate sponsorship agreement or limiting use to athletic department sponsors
protect university interests while remaining open to offering opportunities to athletes willing to
follow the correct procedure.

Group licensing options such as TBG, combine university IP with student-athlete NIL. UNH
could provide a mechanism for co-branding without placing a financial burden on the institution.
When royalties are split between the university and the athlete, TBG is compensated through the
athletes’ royalties. To account for the spilt in royalties, UNH would likely increase its royalty
rate from 12% to around 20%.

Student athletes can also produce merchandise with UNH IP without using a group licensing
company. If an athlete would like to produce merchandise, there are procedures they can follow,
just like any other student, to seek approval from the licensing department. These procedures
should be advocated for and publicly available. Educating athletes and providing them with the
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resources they need to pursue merchandise is as simple as having an instructional webpage on

the athletic website.

Ultimately, NIL policies should be clear, available, and reasonable. The policy should appeal to
athletes and offer as many opportunities as possible without compromising the interests of the
university.