3 Questions For A Sports Agent Turned Sports Lawyer (Part I)

Darren Heitner shares some insights on how student-athletes can monetize their NILs.

One of the most exciting new developments of the last year from an IP perspective was the Supreme Court’s unanimous affirmance in NCAA v. Alston, finding that restrictions on the provision of education-related benefits to student-athletes in college were improper. On the news of the decision, I claimed on these pages that “the gold rush has begun” and that there was a “pent-up commercial demand for student-athlete endorsements, fueled both by the tremendous interest in college athletics by the general public, as well as the savvy use of social media by student-athletes themselves.” I even offered up to one hour of pro bono counseling to each of the first 10 student-athletes who reached out with IP-related questions in connection with their newfound economic freedoms. While I am happy to leave that offer standing, I am also quite sure that the lack of uptake was more related to my lack of a significant Twitter presence than a lack of demand or interest by student-athletes interested in profiting from their names-image-likeness (NIL).

Thankfully, there is no lack of sophisticated legal representation available for student-athletes and athletic departments around NIL-related endorsement deals. Likewise, there is no lack of demand for those deals, as a recent article from my favorite newspaper, Gastonia’s own Gaston Gazette, illustrates. Indeed, everyone from lawyers to sports marketing consultants to family members stand ready and willing to assist student-athletes monetize their personas — hopefully staying within the rules set by their respective institutions and the NCAA in the process. If I were a student-athlete, I would definitely seek the best representation I could, especially for high-value endorsement deals.

At the top of my list would be someone with experience working with athletes, especially if they were also acknowledged as a leading expert on NILs — perhaps because they were instrumental in drafting Florida’s nation-leading NIL law. Thankfully for us, someone with those bona fides has agreed to share their thoughts on NILs with this audience. I am speaking of Heitner Legal’s Darren Heitner, the creator of the Sports Agent Blog, and current go-to lawyer for some of professional and amateur sports’ leading lights. Heitner is an honors graduate of the University of Florida with a Bachelor of Arts in political science, where he was named valedictorian of the College of Liberal Arts and Sciences. In 2010, Heitner received a Juris Doctor from the University of Florida Levin College of Law. Perhaps most importantly, he is a frequent and distinguished writer on these pages, including some of the best writing anywhere on the ever-changing legal landscape around NILs. It is an honor, therefore, that Darren has agreed to share some insights with this IP-focused audience.

Now to the interview. As usual, I have added some brief commentary to Darren’s answer below but have otherwise presented his answer to my first question as he provided it.

Gaston Kroub: What is most exciting about your work with college athletes in these uncharted new waters whereby they can monetize their NILs?

Darren Heitner: The most exciting part about working with college athletes who can, for the first time, monetize their names, images, and likenesses is the joy that these opportunities bring to the athletes and their families. Many of the athletes that I am fortunate to work with had very tough upbringings and any amount of money beyond whatever their scholarships provide for them (if they are lucky enough to have a scholarship in place), is very rewarding. These rights that the athletes now enjoy are rights that should have never been taken away from them and which their colleagues on campuses across the nation have always been able to exploit. All of a sudden, as of July 1, athletes are on the same playing field as their fellow classmates and have the capacity to generate some money based on their talents, platforms, social media followings, etc. The limitless number of options for them continues to create excitement for myself and the ecosystem at large.

GK: Darren astutely points out that many of the beneficiaries of the recent changes around NILs are from disadvantaged backgrounds — and that the money they stand to earn can have a disproportionately beneficial impact on their quality of life as student-athletes. At the same time, with the opportunity comes a measure of risk, in the sense that we are still talking about young adults being thrust into uncharted waters — waters which are populated at least in part by unscrupulous sharks looking to profit off the fame of others. In my view, this dynamic creates a duty on the part of those of us in a position to help these student-athletes avoid getting exploited or running afoul of rules or laws with which they may be unfamiliar. Part of that responsibility falls upon more mature family members, as well as collegiate athletic departments — but it also extends to members of the sports law/IP bars, to provide their help to student athletes where appropriate. For those needing serious representation for high-value deals, it of course makes sense to consider lawyers of Darren’s quality and representation.

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Next week, we will hear from Darren about how his experience as a sports agent serves his current legal clients in good stead, as well as his thoughts on why student-athletes could do well to consider working with a boutique law firm like his over a Biglaw shop. In the interim, keep checking these pages for more of Darren’s informative content.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.


Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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