Checklist · Sports and Entertainment

Negotiating an Athlete Endorsement and NIL Deal: A Practical Checklist

21 U.S.C. §§ 812

Type: Checklist
Jurisdiction: National
Date: 2024-08-08
Topic: Sports and Entertainment

An endorsement or NIL agreement looks like a simple personal-services contract and is nothing of the kind. It sits at the intersection of state right-of-publicity law, state NIL statutes that vary substantially from one another, school and conference policy, league and players'-union group licensing programs, FTC endorsement-disclosure rules, trademark law, securities law when equity is part of the deal, and an increasingly urgent set of questions about AI-generated likenesses. This checklist walks both sides — brand counsel and athlete counsel — through fourteen phases, from confirming eligibility and identifying who actually controls the rights being licensed, to defining the grant with precision, structuring compensation, drafting morals and reverse-morals clauses, and closing out post-term and archival use. Each phase ends with the traps that most often turn a signed deal into a dispute. A worked example follows a hydration brand that signs a college guard and walks straight into the school's apparel sponsor.

Negotiating an Athlete Endorsement and NIL Deal: A Practical Checklist

Sports and Entertainment > Sports Law | Published 8 August 2024 - Updated 2 February 2026 | UpLaw - uplaw.us

An endorsement deal is a license of a person. Every other license you draft covers a patent, a mark, or a song — this one covers a human being who has a school, a team, a league, a union, a state legislature, and a regulator all holding a veto. Find out who owns what before you write a single deal term.

Keywords: NIL deal, athlete endorsement agreement, name image and likeness, right of publicity, FTC endorsement guides, morals clause, reverse morals clause, category exclusivity, group licensing, athlete agent statutes, athlete equity compensation, digital replica, team marks license, state NIL statutes

How to use this checklist

Work the phases in order. Phases 1 and 2 are diligence — do them before you draft, because the answers determine whether there is a deal to paper at all. Phases 3 through 11 are the agreement itself. Phases 12 through 14 are the surrounding infrastructure that counsel forgets until it costs someone money.

The doctrinal foundation sits in Sports Law: A Comprehensive Guide to Athlete Contracts, NIL, and League Governance and The Right of Publicity and NIL: A Comprehensive Guide. This document assumes that background and gets to work.

Our running example. Kestrel Hydration Co., a direct-to-consumer electrolyte brand, wants to sign Marisol Vance, a junior point guard at Calder State University, to a two-year endorsement deal: social content, two appearances, and a limited-edition flavor bearing her name. Calder State's athletic department has an exclusive apparel and beverage sponsorship with Vantage Athletic. Vance is represented by Beacon Sports Group. Nobody has yet asked the question that will decide this deal.

Phase 1 — Eligibility and restrictions: school, conference, league, union, and the state NIL statute

[ ] Identify the athlete's exact status: professional, collegiate, high school, Olympic/national-governing-body, or some combination.
[ ] Pull the state NIL statute for the state where the school sits — and confirm whether it has been amended in the last twelve months.
[ ] Pull the institution's own NIL policy and any conference rules. These are often stricter than the statute.
[ ] Confirm the athlete's disclosure obligation to the school (most statutes and policies require reporting the deal, often within a fixed window and often before performance).
[ ] Screen the prohibited categories: alcohol, tobacco and vaping, cannabis, sports wagering and casinos, firearms, adult entertainment, and controlled substances are barred in many states and by most institutional policies.
[ ] On cannabis specifically: marijuana remains a Schedule I controlled substance under the federal Controlled Substances Act, 21 U.S.C. §§ 812, 841, even in states that have legalized it. State legality does not make a cannabis endorsement lawful as a matter of federal law, and hemp-derived and CBD products carry their own FDA and state-law problems. Rescheduling has been under active consideration; verify the current federal status before advising anyone. Counsel should not structure a deal that contemplates violating federal law, and virtually every school, conference, league, and union policy bars the category outright.
[ ] For professional athletes, pull the collective bargaining agreement and league marketing regulations; for Olympic athletes, pull the NGB agreement and Games-period advertising restrictions.
[ ] If the athlete is a minor, confirm the parental-consent and, in some states, judicial-approval requirement for the contract.
[ ] Confirm whether the deal must be routed through a clearinghouse or reporting platform before it is effective.

Why it matters, and the traps. There is no federal NIL statute. What exists is a patchwork of state laws, layered on institutional policy, layered on the post-Alston antitrust landscape. In NCAA v. Alston, 594 U.S. 69 (2021), a unanimous Supreme Court affirmed that NCAA limits on education-related benefits failed rule-of-reason scrutiny under Sherman Act § 1, 15 U.S.C. § 1 — and Justice Kavanaugh's concurrence signaled that the rest of the amateurism edifice was on borrowed time. The NIL era followed within weeks.

The traps compound. First, the state statutes genuinely differ: on prohibited categories, on disclosure timing, on whether school marks may be used, on agent registration, on whether the school may facilitate deals. Never assume the rule you learned in one state travels. Second, institutional policy frequently forbids what the statute permits, and the school — not the legislature — controls the athlete's playing time. Third, the governing framework is moving. The 2025 approval of the House v. NCAA settlement introduced direct revenue sharing between Division I institutions and athletes, subject to an annual per-school cap, and a review mechanism under which third-party NIL deals above a dollar threshold must be reported and assessed for a legitimate business purpose and compensation within a reasonable range of value. Implementation, litigation, and possible federal legislation continue. Verify the current rule before you rely on anything in this paragraph. Fourth, the employment question is unsettled: the Third Circuit's 2024 decision in Johnson v. NCAA rejected the categorical proposition that college athletes can never be employees and remanded for an economic-realities analysis. If athlete-employee status arrives, the wage-hour and tax consequences reach every deal — see Worker Classification: A Comprehensive Guide to Employee and Independent Contractor Status.

Kestrel's diligence turns up two problems: Calder State's policy requires disclosure of any NIL deal seven days before the first deliverable, and the school's beverage category is exclusive to Vantage. Kestrel's marketing team had planned to announce on a Friday.

Phase 2 — Who owns and controls what? Athlete NIL vs team marks vs group licensing

[ ] Map the rights stack: (a) the athlete's individual NIL; (b) the team's or school's trademarks, logos, colors, uniforms, and venue trade dress; (c) league-owned marks and footage; (d) union group licensing rights.
[ ] Confirm the athlete has not already assigned or exclusively licensed the rights you want — to a collective, a prior sponsor, a group-licensing program, or a trading-card or video-game deal.
[ ] Get a representation and warranty from the athlete that the grant is free of conflicting encumbrances, plus a covenant not to grant conflicting rights during the term.
[ ] If your creative uses in-game footage, uniforms, or the arena, identify the separate license required and who grants it.
[ ] For professional athletes, determine whether your intended use crosses the union's group-licensing threshold (a program typically triggered when a set number of players is used together in a single execution).

Why it matters, and the traps. The athlete owns her identity — the persona, name, image, likeness, signature, voice, and recognizable attributes. That is the classic right of publicity recognized in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953), constitutionalized around the edges in Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), and codified in statutes such as Cal. Civ. Code § 3344 and N.Y. Civ. Rights Law §§ 50-51. See The Right of Publicity: Controlling Commercial Use of Name, Image, and Likeness.

What the athlete does not own is the jersey she wears, the logo on her chest, the conference tournament footage, or the arena. Those belong to the school, the league, or its licensing arm. An athlete cannot grant them, and a warranty that she can is worthless. The single most common structural defect in an endorsement agreement is a grant clause that assumes the athlete can deliver a photograph of herself in uniform.

Phase 3 — The grant: define media, territory, term, exclusivity, and category precisely

[ ] Enumerate the licensed attributes: name, nickname, image, likeness, photograph, signature, voice, biographical facts, jersey number, statistics, and any catchphrase or gesture.
[ ] Enumerate the media: paid social, organic social, brand-owned channels, e-commerce, packaging, point-of-sale, out-of-home, broadcast/CTV, print, PR.
[ ] State the territory (do not default to "worldwide" without pricing it) and the term, with separate treatment of the campaign window versus the license window.
[ ] Define exclusivity with surgical precision: the product category, stated in words a court can apply, not "beverages" when you mean "non-alcoholic electrolyte and hydration products."
[ ] Carve out the athlete's non-commercial and editorial activity, her own personal brand, and pre-existing deals — list them on a schedule.
[ ] Specify whether the grant is exclusive, non-exclusive, or sole; and whether it is sublicensable to retailers and distributors.
[ ] Fix whether the brand may use the athlete's name as a trademark (a signature line, a namesake flavor) and, if so, address ownership, goodwill, and post-term use.

Why it matters, and the traps. A license is defined by its scope; everything outside the four corners of the grant is a trespass. The discipline here is identical to any other IP license — see Intellectual Property Licensing: A Comprehensive Guide to Structuring and Negotiating License Agreements — with one difference: an over-broad grant does not merely cost the licensor money, it costs her control over her identity for the rest of her career.

Two traps recur. Category drift: "hydration" written loosely swallows sports drinks, water, coffee, and protein shakes, blocking the athlete from four unrelated deals for two years. Draft the category, then draft the exclusion list. Media creep: a social-post deal priced for organic posting, then run as paid media across CTV for eighteen months, is a breach — and if the brand keeps running it after term, it is a false-endorsement claim under Lanham Act § 43(a), 15 U.S.C. § 1125(a), the theory vindicated in White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992).

Phase 4 — Deliverables: appearances, social posts, content, and the approval workflow

[ ] Specify each deliverable with a number, a channel, a format, a live window, and a minimum dwell time (e.g., "in-feed for no fewer than 12 months").
[ ] Fix usage rights in the content: who owns the photograph, the reel, the caption? Default to a written assignment or a work-made-for-hire treatment where valid, plus a broad license fallback.
[ ] Build the approval loop: who approves, in what time, and what happens on silence (deemed approval after N business days is standard and essential).
[ ] Set appearance mechanics: hours, travel and lodging class, per diem, security, blackout dates around competition, and force majeure tied to team obligations.
[ ] Require the athlete to preserve the content and not delete or archive posts before the dwell period ends.
[ ] Address the athlete's editorial control over her own words and images (a "no words in my mouth" clause).

Why it matters, and the traps. Deliverables are where deals actually fail — not in the grant clause but in the calendar. The athlete's employer is a team; the team's schedule beats your shoot date every time. Build the blackout regime rather than litigating around it.

The ownership question is subtler than it looks. If the athlete's own videographer shoots the content, the athlete's company owns the copyright, and the brand has only what the agreement gives it. If the brand shoots, the brand owns the copyright but still needs the publicity license to use it — copyright ownership of a photograph is not permission to use the person in it commercially. Two distinct rights; both must be granted. Content-production and talent-deal architecture is treated at length in Entertainment Law: A Comprehensive Guide to Film, Television, and Talent Deals.

Phase 5 — Compensation: cash, in-kind, royalties, and equity

[ ] Set the cash structure: flat fee, per-deliverable, milestone-based, or retainer; and the payment trigger (delivery? approval? invoice?).
[ ] Value in-kind consideration (product, gear, travel) and state the value in the agreement — it is taxable income to the athlete regardless.
[ ] For royalties, define Net Sales with the deduction stack, set the audit right, and set a minimum guarantee.
[ ] If equity is offered, run the securities analysis before signing, not after.
[ ] Choose the equity instrument (restricted stock, options, RSUs, SAFE, profits interest) and confirm the exemption from registration.
[ ] Consider whether the athlete should make an IRC § 83(b) election on restricted stock, and calendar the 30-day deadline.
[ ] If the athlete will promote the security itself (a token, a fund, a public offering), address Securities Act § 17(b), 15 U.S.C. § 77q(b) — the anti-touting provision.
[ ] Issue Form 1099-NEC; the athlete is a contractor, not an employee, in nearly all endorsement structures.

Why it matters, and the traps. Equity is where sophisticated deals go wrong. Stock in a private company is a security under Securities Act § 2(a)(1) and the Howey test, SEC v. W.J. Howey Co., 328 U.S. 293 (1946). Issuing it to an athlete is an offer and sale that requires an exemption — typically § 4(a)(2) or Regulation D, 17 C.F.R. § 230.506, and typically requiring the athlete to be an accredited investor or to fit within Rule 701's compensatory framework. A startup that hands a college athlete 0.5% "for the exposure" without an exemption analysis has committed a securities violation and created a rescission right. Work the mechanics in Running a Regulation D Private Placement: A Securities Compliance Checklist and Raising Capital: A Startup Securities Toolkit; the exemption landscape is mapped in Raising Capital Legally: A Comprehensive Guide to Securities Exemptions for Startups.

Section 17(b) deserves its own alarm. It makes it unlawful to publicize a security for consideration without fully disclosing the consideration received. The SEC has enforced it repeatedly against celebrity promoters of digital assets. An athlete who posts about a token she was paid in has a federal securities problem, not a disclosure inconvenience.

Kestrel offers Vance $60,000 plus 15,000 shares of common stock. Counsel discovers Vance is not accredited, and that Calder State's policy caps in-kind value that may be reported as NIL compensation. The equity is restructured as a compensatory option grant under a Rule 701 plan, and Beacon calendars the § 83(b) window.

Phase 6 — Morals clauses — and reverse-morals clauses protecting the athlete

[ ] Draft the morals clause with an objective trigger wherever possible: conviction, indictment, positive drug test, adjudicated misconduct, or a defined class of conduct.
[ ] Decide whether mere accusation or "conduct that brings the athlete into public disrepute" triggers — and if so, negotiate a cure period, a suspension-of-payment remedy short of termination, and a reinstatement mechanism if the accusation is withdrawn.
[ ] Tier the remedies: suspension of deliverables, pause of payments, pull-down of assets, then termination.
[ ] Address repayment/clawback: is any portion of the fee refundable? Cap it.
[ ] Draft the reverse-morals clause: the athlete may terminate if the brand, its executives, or its products cause reputational harm, are subject to a recall, or engage in conduct inconsistent with the athlete's public values.
[ ] Cover pre-existing conduct: a "no known undisclosed conduct" rep from each side, and a carve-out so old, disclosed conduct cannot be recycled as a trigger.
[ ] Preserve the athlete's right to speak on matters of public concern; exclude protected expression from the trigger unless narrowly defined.

Why it matters, and the traps. Morals clauses are contract, not tort — they mean exactly what they say. A clause keyed to "any conduct that offends public morals as determined by Company in its sole discretion" is a termination-at-will clause wearing a costume, and athlete counsel should treat it as one. Conversely, a brand that accepts a conviction-only trigger has no remedy for an athlete whose conduct dominates the news cycle for a year without charges ever being filed.

The reverse-morals clause is the parity term and is routinely omitted. A product recall, an executive scandal, or a brand's political entanglement can damage the athlete more than the deal was ever worth. Negotiate it. Remedies on breach — and why the athlete's reputational loss is hard to quantify — are treated in Contract Damages: How Courts Make the Injured Party Whole.

Phase 7 — FTC disclosure: the endorsement must be disclosed, and the brand must police it

[ ] Impose a contractual obligation on the athlete to disclose the material connection clearly and conspicuously in every post.
[ ] Specify the disclosure form: "#ad" or "Paid partnership with [Brand]" placed above the fold, in the post itself, not buried in a hashtag cluster, not only in a platform tool.
[ ] Require disclosure in video and audio, not just captions — spoken and superimposed, and repeated in long-form.
[ ] Prohibit claims the athlete cannot substantiate; require her to use the product if she says she does.
[ ] Build a monitoring and takedown program: the brand must review posts and require correction. Contract language alone is not a defense.
[ ] Train the athlete and her representatives, and document the training.
[ ] Screen every claim against the product's substantiation file — especially health, performance, and recovery claims.

Why it matters, and the traps. The FTC's Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. Part 255, require disclosure of any material connection between endorser and advertiser that a consumer would not reasonably expect. The Guides were substantially revised in 2023, broadening the reach to a wider set of endorsers and making explicit that advertisers must have programs to monitor and enforce. The FTC's separate rule on consumer reviews and testimonials, 16 C.F.R. Part 465, adds teeth around fabricated and insider reviews. Enforcement runs through FTC Act § 5, 15 U.S.C. § 45.

The trap is passivity. A brand that puts a disclosure covenant in the contract and never looks at the posts has not complied — it has documented that it knew the obligation and ignored it. Run the operational program in Influencer and Endorsement Disclosure: A Practical Checklist, and set the claims-substantiation baseline from Advertising Law: A Comprehensive Guide to the FTC Act and Lanham Act and The Advertising and Marketing Law Toolkit. The platform-specific mechanics are in Social Media Law: A Field Guide to the Legal Stack.

Athlete-specific trap: a supplement or hydration endorsement can end a career. If the product is not certified against the WADA or NCAA banned-substance lists, the athlete is endorsing a compliance risk she cannot control. Athlete counsel should demand a third-party certification warranty and an indemnity for a positive test traceable to the product.

Phase 8 — Conflicts with team, league, and school sponsors

[ ] Obtain the athlete's list of existing obligations: school, conference, team, league, union, collective, and personal sponsors.
[ ] Identify the official-sponsor categories for the school and league — and whether the athlete's individual deal is permitted to conflict with them.
[ ] Determine what the athlete may not do in a conflicting category: appear in team facilities, wear team gear, mention the school, appear during team media availability, or use school-provided content.
[ ] Build a facilities and gear protocol into the deliverables: neutral apparel, neutral backdrop, no branded team property in frame.
[ ] Confirm the league's or school's approval requirement (some require pre-clearance of the creative itself).
[ ] For pros, confirm whether the deal must be disclosed to the club and the union.

Why it matters, and the traps. This is the category-exclusivity minefield, and it is where most NIL deals detonate. The school's apparel and beverage deals are worth millions; the athlete's individual deal is worth thousands. When they collide, the school wins — not because the law says so, but because the school controls access to the facility, the uniform, the media availability, and, in practice, the roster.

Kestrel and Vance solve it the only way it can be solved: the campaign is shot off campus, Vance wears unbranded apparel, the creative never names Calder State, and the limited-edition flavor is called "Vance 22" rather than anything referencing the Calder State Kestrels — a name collision counsel catches at the eleventh hour and renames.

Phase 9 — Team and school marks require a separate license the athlete cannot grant

[ ] Confirm whether the creative uses any third-party mark: logo, wordmark, uniform, helmet, color combination, mascot, arena, or league footage.
[ ] If yes, obtain a written license from the mark owner — the school's licensing agent, the league's licensing arm, or the conference.
[ ] Verify the athlete's own name is clear for trademark use if you will brand a product with it (surname registrability, consent, prior rights).
[ ] Include quality-control provisions in any trademark license — a naked license risks abandonment.
[ ] Confirm the athlete's warranty is limited to her own rights, and that the brand bears the clearance burden for third-party marks.

Why it matters, and the traps. Colors, uniforms, and stadium trade dress are protectable, and a brand that suggests institutional endorsement without a license invites a false-endorsement claim under 15 U.S.C. § 1125(a) from the school as well as a breach claim from its official sponsor. The First Amendment defense articulated in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989) protects expressive works — not advertising — and the Supreme Court narrowed its reach where the mark is used as a source identifier in Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023). A commercial endorsement is not an expressive work. Structure the trademark side with Drafting a Trademark License Agreement: A Practical Checklist and, for institutional counsel, the governance context in Education Law: A Comprehensive Guide to Title IX, FERPA, and the IDEA. Two cautions on the institutional side. First, most education governance is state and institutional law — public-university licensing policy, state trademark and branding rules, and athletic-department approval processes vary school by school, and there is no nationwide rule. Second, Title IX regulations and the federal agency guidance interpreting them have changed repeatedly in recent years, including on how institutional support for athletes is treated; if the school itself is facilitating, funding, or promoting the deal, confirm the current regulation and current guidance before advising. Do not rely on a remembered version of the rule.

Phase 10 — Image approval, archival use, and post-term tail rights

[ ] Fix an approval right over which images and takes may be used, with a deemed-approval backstop.
[ ] Define the sell-off period for inventory and point-of-sale bearing the athlete's likeness (90–180 days is typical) and cap it.
[ ] Define archival/historical use: may the brand keep the campaign on its website, in its brand history, in internal decks, in awards submissions? Say yes or no in writing.
[ ] Require takedown of paid media and owned channels at term end, with a deadline.
[ ] Address user-generated and press-picked-up content the brand cannot control — a reasonable-efforts standard, not a guarantee.
[ ] Address the athlete's own use of the content in her portfolio and highlight reels.
[ ] Consider post-mortem rights and successors if the athlete's estate could be affected.

Why it matters, and the traps. "Perpetual archival use" sounds harmless and is not. Ten years later, the retired athlete's face is still selling electrolytes on a brand's "Our Story" page, and her current competitor-category deal is in breach. Cap archival use, define it narrowly (non-promotional, historical, non-paid), and make the brand's takedown obligation a hard covenant. Post-mortem publicity rights vary substantially by state and are an estate-planning asset — see Passing Down Your IP: Copyright, Patents, Publicity Rights, and Estate Planning.

Phase 11 — AI, digital doubles, and synthetic likeness

[ ] Insert an express AI clause. Silence is not a prohibition — it is an argument.
[ ] Default to a prohibition on generating, training on, or deploying any synthetic or digital replica of the athlete's likeness or voice without separate, specific, written consent.
[ ] Prohibit use of the athlete's content and image as training data for any model, including the brand's vendors' models.
[ ] If a digital double is in scope, negotiate it as a separate license with its own term, fee, use limits, and destruction obligation at term end.
[ ] Prohibit AI-generated statements attributed to the athlete — voice clones, synthetic testimonials, AI-personalized greetings — absent specific consent.
[ ] Flow the restriction down to agencies, production companies, and platforms by contract.
[ ] Require deletion or destruction of biometric scans, voice prints, and 3D captures at term end.

Why it matters, and the traps. The law is arriving quickly and unevenly. Tennessee's ELVIS Act (2024) expressly extended that state's publicity statute to voice and to AI-generated replicas. California's 2024 legislation regulates digital-replica provisions in personal-services contracts and requires meaningful consent, including representation, when a replica is licensed. A federal statute addressing unauthorized digital replicas has been proposed but, as of this writing, not enacted — verify the current state of both federal and state law before relying on any of it. Biometric-privacy statutes such as Illinois's BIPA can independently apply to face and voice scans; see Biometric Privacy Law and the AI Systems That Read Faces and Voices.

For the brand, the governance obligation is real: if your agency's model was trained on your athlete's content without consent, you have the exposure. Build the controls from AI Governance and Compliance: A Comprehensive Guide and Deploying an AI System: An AI Governance and Risk Checklist.

Phase 12 — Agents, agency law, and state athlete-agent statutes

[ ] Confirm the agent's authority: is there a signed representation agreement, and does it cover marketing/endorsement (many cover only playing contracts)?
[ ] Confirm the agent is registered where required. Most states have enacted some version of the Uniform Athlete Agents Act; adoptions and amendments vary.
[ ] Confirm compliance with the federal Sports Agent Responsibility and Trust Act, 15 U.S.C. §§ 7801–7807, which makes certain deceptive recruiting conduct toward student athletes an unfair or deceptive act enforceable by the FTC.
[ ] For professionals, confirm the agent is certified by the players' union where the union regulates contract advisors.
[ ] Confirm the agent's commission does not violate a state cap and is disclosed.
[ ] Confirm the athlete — not just the agent — signs the endorsement agreement, and that the athlete has independent review.
[ ] Screen the collective: if a school-affiliated NIL collective is funding the deal, confirm its tax posture and whether the school may lawfully be involved.

Why it matters, and the traps. The Uniform Athlete Agents Act, in its various state adoptions, imposes registration, written-contract, and notice requirements, and non-compliance can void the agency contract and expose the agent to penalties — and, in the collegiate context, the athlete to eligibility consequences. An unregistered "marketing rep" who papers a deal for a college athlete can cost that athlete her season. Ask for the registration number.

On collectives: an IRS Office of Chief Counsel memorandum released in 2023 concluded that many nonprofit NIL collectives confer more than incidental private benefit on athletes and therefore do not qualify for exemption under IRC § 501(c)(3). Do not assume a collective's donors get a deduction, and do not let the athlete assume the payment is anything but taxable income.

Phase 13 — Term, termination, breach, and remedies

[ ] Set the term, any renewal option, and the right of first refusal / matching right (and negotiate its scope tightly — a broad ROFR chills the athlete's next deal).
[ ] List termination triggers for each side: material breach with cure, morals/reverse-morals, insolvency, loss of eligibility, career-ending injury, retirement, transfer, or a trade.
[ ] Address injury and non-performance: does the brand still pay? Pro-rate? Suspend?
[ ] Specify the survival clause: confidentiality, indemnity, sell-off, archival limits, and the AI restrictions must survive.
[ ] Set indemnities both ways, with caps and carve-outs (IP infringement, false advertising, and personal conduct are the live ones).
[ ] Provide for injunctive relief for likeness misuse and for exclusivity breach; recite irreparable harm.
[ ] Choose governing law, forum, and whether to arbitrate — and if arbitrating, address confidentiality and interim relief.

Why it matters, and the traps. Courts will not order a person to perform personal services — that principle runs from Lumley v. Wagner (Eng. Ch. 1852) forward — but they will enjoin an athlete from performing the same services for a competitor during the term, as the Pennsylvania Supreme Court did in the Philadelphia Ball Club v. Lajoie line of cases in 1902. That asymmetry is the leverage in an exclusivity fight: the brand's realistic remedy is a negative injunction plus damages, not compelled performance.

Damages, meanwhile, are hard on both sides. The brand's loss from a missed post is speculative; the athlete's reputational loss from an unauthorized extension of the campaign is worse. Liquidated damages, properly drafted as a reasonable forecast rather than a penalty, are often the honest solution. Draft the dispute clause with Drafting an Arbitration Clause: A Practical Checklist and the balance of the deal architecture with The Commercial Contracts Toolkit: Drafting, Reviewing, and Enforcing Business Agreements.

Phase 14 — Tax, entity structure, and international withholding

[ ] Decide whether the athlete contracts personally or through a loan-out entity (an S corporation or LLC), and whether the school or state law permits it.
[ ] If a loan-out is used, get the inducement letter: the athlete personally guarantees performance and grants the NIL rights directly.
[ ] Confirm the athlete is an independent contractor, and paper it accordingly; issue Form 1099-NEC.
[ ] Budget for self-employment tax and quarterly estimated payments — the single most common financial failure among young athletes.
[ ] Treat in-kind product and gear as taxable income at fair market value.
[ ] Consider multi-state allocation: appearance income is generally sourced where the services are performed, and several states tax visiting athletes.
[ ] For a non-U.S. athlete, address withholding on U.S.-source income under IRC §§ 1441–1442 (generally 30% absent a treaty rate or an IRS central withholding agreement), and confirm the athlete's visa permits paid endorsement work.

Why it matters, and the traps. A twenty-year-old who receives $60,000 and $12,000 of product, sets aside nothing, and files no estimated payments will owe roughly a third of it and will not have it. Athlete counsel who does not raise this has not done the job. Entity selection is genuinely consequential — work it through Choosing a Tax Entity: A Practical Checklist and Business Taxation: A Comprehensive Guide to Entity Choice and Federal Income Tax. And confirm the contractor characterization holds up under Classifying Workers: Employee or Independent Contractor — A Practical Checklist.

For international student-athletes, the visa question is often dispositive: certain nonimmigrant statuses sharply restrict compensated work, and a well-structured NIL deal can create an immigration problem the contract cannot solve.

Common mistakes to avoid

Signing before diligence. Phases 1 and 2 are not paperwork; they determine whether the deal is possible. Most blown NIL deals were unlawful or non-compliant from the moment of signature.
Warranting rights the athlete does not own. She cannot license the jersey, the logo, the arena, or league footage. Ever.
Vague category exclusivity. "Beverages" is not a category. Draft the definition and the exclusions.
Assuming one state's NIL statute is the national rule. It is not. Confirm the specific state, the specific institution, and the current version of both.
Treating the FTC disclosure covenant as compliance. The Guides require an active monitoring program, not a clause.
Handing an athlete equity without a securities analysis. An unexempted issuance is a violation and a rescission right.
Omitting the reverse-morals clause. Reputational risk runs in both directions.
Leaving AI unaddressed. Silence will be argued as consent. Say no explicitly, and make it survive.
Perpetual archival use. It quietly forecloses the athlete's next decade of deals in that category.
Ignoring banned-substance certification on any ingestible product.
Letting an unregistered agent paper the deal, exposing the athlete to eligibility and the agent to statutory penalties.
Forgetting the tax. In-kind product is income; estimated payments are mandatory; self-employment tax is real.

The consolidated NIL/endorsement checklist

Diligence

[ ] Athlete status, state NIL statute, institutional policy, conference and league rules confirmed and current
[ ] Prohibited categories screened; disclosure/clearinghouse obligation calendared
[ ] Minor's consent/approval requirements satisfied
[ ] Rights stack mapped; existing encumbrances and group-licensing obligations identified

The Grant

[ ] Attributes, media, territory, term, exclusivity, and product category defined with exclusions
[ ] Carve-outs and pre-existing deals scheduled
[ ] Separate trademark license obtained for any school, team, or league marks

Performance

[ ] Deliverables enumerated with dwell times and blackout dates
[ ] Content ownership and publicity license both addressed
[ ] Approval loop with deemed-approval backstop

Money

[ ] Cash, in-kind (valued), royalties with audit rights
[ ] Equity: exemption confirmed, instrument selected, § 83(b) calendared, § 17(b) considered
[ ] 1099-NEC, estimated taxes, entity/loan-out and inducement letter

Risk

[ ] Morals clause with objective triggers and tiered remedies
[ ] Reverse-morals clause
[ ] FTC disclosure covenant plus monitoring program plus substantiation review
[ ] Banned-substance certification and indemnity for ingestibles
[ ] AI/digital-replica prohibition, training-data ban, biometric deletion — all surviving termination

Exit

[ ] Termination triggers, cure, survival, indemnity caps
[ ] Sell-off period capped; takedown deadline fixed; archival use narrowly defined
[ ] Injunctive relief and irreparable-harm recital
[ ] Governing law, forum, arbitration

Primary Authority

FTC Act § 5, 15 U.S.C. § 45 (unfair or deceptive acts or practices).
FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. Part 255 (material-connection disclosure; substantially revised 2023).
FTC Rule on the Use of Consumer Reviews and Testimonials, 16 C.F.R. Part 465.
Lanham Act § 43(a), 15 U.S.C. § 1125(a) (false endorsement and false advertising).
Sherman Act § 1, 15 U.S.C. § 1; NCAA v. Alston, 594 U.S. 69 (2021) (NCAA restraints on education-related benefits fail rule-of-reason review).
Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977) (right of publicity; First Amendment limits).
Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953) (recognizing the assignable right of publicity).
White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992) (evocation of identity; false endorsement).
Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), as narrowed by Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023).
State right-of-publicity statutes — e.g., Cal. Civ. Code § 3344; N.Y. Civ. Rights Law §§ 50–51. These vary substantially; several states have none.
State NIL statutes — every state's differ in scope, prohibited categories, disclosure timing, and agent regulation, and many have been amended more than once. Confirm the current text for the relevant state, and the institution's own policy, before relying on anything.
Uniform Athlete Agents Act (2000; revised 2015) — state adoptions and amendments vary.
Sports Agent Responsibility and Trust Act, 15 U.S.C. §§ 7801–7807.
Securities Act of 1933 §§ 2(a)(1), 4(a)(2), 17(b); Regulation D, 17 C.F.R. § 230.506; Rule 701; SEC v. W.J. Howey Co., 328 U.S. 293 (1946).
Internal Revenue Code §§ 61, 83 (and the § 83(b) election), 1401–1402, 1441–1442.
Digital-replica legislation — Tennessee's ELVIS Act (2024) and California's 2024 digital-replica contract statutes are enacted; a federal digital-replica bill has been proposed but not enacted. This area is changing quickly; verify.
Controlled Substances Act, 21 U.S.C. §§ 812, 841 — marijuana remains a Schedule I controlled substance under federal law even where a state has legalized it. Rescheduling has been under active consideration; verify the current federal status. State legalization does not authorize conduct that federal law prohibits.
Title IX, 20 U.S.C. § 1681, and its implementing regulations — the regulations and the agency guidance construing them have changed repeatedly and are subject to litigation; verify the current version before relying on it. Most other education governance is state and institutional law and varies.

Accuracy caution. College-sports law is in active motion. The House v. NCAA settlement (approved 2025) introduced institutional revenue sharing and third-party NIL review; the employment status of college athletes remains unsettled after the Third Circuit's 2024 decision in Johnson v. NCAA; state statutes and institutional policies change every legislative session. Nothing in this checklist substitutes for confirming the current rule in the specific state and at the specific institution.

Secondary Sources

McCarthy & Schechter, The Rights of Publicity and Privacy (the standard treatise).
McCarthy on Trademarks and Unfair Competition (false endorsement under § 43(a)).
Restatement (Third) of Unfair Competition §§ 46–49 (appropriation of the commercial value of a person's identity).
Corbin on Contracts and Williston on Contracts (personal-services agreements; negative injunctions; liquidated damages).

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This checklist is general legal information from UpLaw (uplaw.us), not legal advice, and does not create an attorney-client relationship. Laws vary by state and change over time; NIL law in particular is changing rapidly — verify current statutes, institutional policies, and league rules, and consult qualified counsel before acting.