Interviewee’s note: As a disclaimer to the questions below, I consider it necessary to state that my responses are not to be considered as legal advice and is purely for information purposes. Such information is not case specific and is general in nature. Furthermore, as the nature of the questions are primarily in reference to the growth of NIL rights amongst college sports in the US (which, I personally have limited experience in), my responses are grounded from my understanding of intellectual property rights in general and image rights, which form a subset of NIL rights. That said, I have provided legal advisory support in a few instances involving European-based basketball agents whose clients were U.S. college athletes seeking to navigate and negotiate NIL agreements. Nevertheless, from a legal standpoint, both NIL and image rights allow athletes to monetize their persona and represent a shift in control of how third parties are allowed to use the image and likeness of an athlete

VL: Could you please outline your career path in international sports law? What attracted you to this specialized field of law?

Aditya Shankar: My passion for Sports Law stemmed from a deep desire to help young athletes navigate the non-sporting challenges that often hinder their professional development. From an early age, I was actively involved in sports, particularly track & field and football, competing at both state and national levels. Through these experiences, I personally encountered numerous systemic issues that impeded the growth of youth athletes. Most notably, age-fraud in amateur and semi- professional football in India. Witnessing these obstacles firsthand motivated me to seek lasting solutions, with the ultimate goal of contributing to the development of India’s grassroots sports policy – a foundation I believe can have a transformative impact on the country’s performance at the international level.

This conviction led me to pursue a degree in Law during my undergraduate studies. After graduating, I gained experience in civil and commercial litigation and arbitration before various courts and tribunals in Bengaluru, my city of domicile. I deliberately chose this path to first build a strong foundation in legal practice, recognizing that these tools would be essential for a career in sports litigation and arbitration. To further specialize, I enrolled in the Master’s program in International Sports Law at ISDE Law & Business School in Madrid, Spain. This program provided me with an internship at Bolcar Law Office in Ljubljana, Slovenia, under the guidance of Mr. Blaž Tomažin Bolcar.

Currently, I serve as a full-time Associate at Bolcar Law Office, where I represent a diverse range of stakeholders in international sports arbitration. My practice includes appearances on behalf of clients before judicial bodies such as FIFA, FIVB, the Basketball Arbitral Tribunal, and the Court of Arbitration for Sport. Additionally, I also provide legal advice and assistance in contractual negotiations for football and basketball players, agents, football clubs and assistance in commercial matters for a UCI WorldTour Cycling Team.

VL: Can you start by explaining what Name, Image, and Likeness (NIL) rights mean for athletes, and why this has become such a significant issue in the sports industry?

Aditya Shankar: In short, NIL refers to athletes capitalising on their personal identity in the form of sponsorships, endorsements, and other commercial deals involving their name, signature, physical identity or anything tangible or intangible that is attributable to them. It is not new in the sports world, and it closely mirrors how social media influencers monetize their online presence and public persona.

To the question of why it has become a significant issue recently, it can be answered best by viewing it from the perspective of an athlete – why should a third-party commercially profit from the brand and image that an athlete has worked his/her life to establish without sharing the revenue or compensating the athlete? Ultimately, such rights are an attempt of athletes to gain a share of the pie and increase their earnings, which for a long time, were being captured by their employers, broadcasters and other entities that used the identity and name of sports persons for their commercial purposes without compensating the athletes.

NIL, in particular, has become a significant development amongst college athletes in the USA since 2021 as the NCAA has permitted college athletes a legal work-around to commercially benefit from their name, image and likeness while at the same time retaining the amateur status of the college-level sports. This means that while college level athletes do not get paid for their activity as a sportsperson, apart from necessary reimbursements for their tuition (main distinction between an amateur and a professional), they are still able to monetize their brand and image by entering into commercial arrangements with third parties. This maybe in the form of sponsorship deals, endorsements, autographs, coaching roles etc. The only limitation that has been placed is that such NIL deals should not be linked or attributable to the college that the athlete is a part of, or even conflict with the commercial deals that college teams may enter into.

Otherwise, in general, image right deals have been in place for several years – especially amongst professional athletes. They are an important tool for professional athletes to monetize their brand and image and earn a continued income long after they hang up their boots. The value of such deals largely depends on the athlete’s persona both on and off the field. However,

with NIL, the role of the university and sports ecosystem around college level sports can have an impact on athletes securing better NIL deals, apart from the on-field performance of the athlete.

VL: What should athletes consider when entering into NIL deals, and what are the potential pitfalls they need to avoid in these agreements?

Aditya Shankar: The following are some of the key issues and provisions that an athlete should look out for prior to entering into a NIL contract (or image right/endorsement agreements in general):

• The scope of the rights granted/assigned to the entity to use the name, image and likeness of the athlete. In this regard, athletes should ensure that the scope is more specific and not general in nature. Furthermore, it is important to verify if the NIL deal restricts an athlete from entering into similar deals with competitors or not. For an athlete, a non-exclusive deal would work in their favour as it would provide them various opportunities to monetize their brand and image.

• The duration of the deal is essential as the Athlete should ensure to not grant rights to an entity for the duration of his/her career or in perpetuity. A limited and short term deal, with a possibility of renewal subject to the mutual agreement of both parties is more athlete friendly.

• The athlete should also ensure that the social media obligations or any other required performance under the agreement do not conflict with their training, matches, and education. It is necessary for an athlete to also mandate for the entity to provide sufficient and reasonable notice to the athlete prior to any public engagement or social media obligation. Furthermore, it is imperative for an athlete to retain the right of review and approval prior to the publication of any social media post or any product endorsed by the athlete.

• If it a brand endorsement, the athlete should also check as to whether such an endorsement could harm their persona and reputation. It is best for an athlete to endorse products that they personally have tested, used or believe in.

• The NIL deal should be in compliance with the NCAA policy and the respective state laws in the US.

• The athlete should be aware of the conditions of termination and what conduct or action of theirs could constitute a breach of the NIL agreement.

• The compensation (licensing fee) paid to the athlete should be commensurate to the athlete’s brand, persona and obligations under the agreement. This is however a matter of commercial consideration dependent on the agreement between the parties. However, with respect to compensation, it is important for an athlete to check how these payments are made – upfront, in full or in instalments. In most NIL deals, the payments are made upfront and in full, upon the enrolment of the athlete in the college or signing of the agreement. It is also important to check if the athlete is liable to make any payments in return if certain conditions of the agreement have not been complied with during the course of the agreement.

• The income earned from such NIL deals is also subject to taxation. Hence, it is important for an athlete to understand who bears the tax burden. In most NIL deals, it is the athlete that bears the tax burden. This would involve taxation in the specific state and possibly taxation outside the US as well (for an international athlete). Hence, it is necessary for an athlete to seek appropriate advice to ensure that they are not taxed twice on the same income.

• It is also necessary for an athlete to ensure that there is no conflict of interest with a team’s rights or the league’s official sponsors.

• Lastly, the governing law and dispute resolution clause is required to be carefully reviewed. This is necessary as not every state in the USA has NIL specific laws implemented yet and could render the agreement if it is breach of either the NCAA’s Interim NIL Policy or the respective universities NIL policy. It would also be advisable for an athlete to include provisions for mandatory mediation prior to pursuing litigation, as this would play a part in significantly reducing costs and forcing the other party to the negotiating table. In case of a cross-border, NIL deal, it may also be important for the parties to choose arbitration as a mode of dispute resolution – specifically in a country neutral to both parties and in accordance with laws (i.e. the laws governing the country where the seat of arbitration is based) that enable easier enforcement of arbitral awards.

VL: With the rise of NIL opportunities, how has the role of agents, lawyers, or advisors evolved in helping athletes navigate these deals?

Aditya Shankar: For agents and advisors, it has opened a new market and also expanded their role. This is because, prior to 2021, agents had no right to represent college athletes in negotiating commercial deals or endorsements. Their role was severely restricted by the NCAA rules to exploring for professional opportunities (for instance the NBA draft). However, post 2021, agents market share has increased beyond professional athletes to even amateur athletes in US colleges.

Similarly, for lawyers, the scope of work has increased to include intellectual property protection, reputation management, social media strategies and taxation plans for college level athletes.

Furthermore, and not necessarily under the scope of this question, I would also like to add that this increased market for agents however also requires specific regulations and policies in place to safeguard college level amateur athletes, especially those athletes that are still minors. The NCAA may have to impose specific qualifications or requirements prior to which an agent may be permitted to represent college level athletes, failing which, the rights and interests of such athletes may not be adequately and sufficiently catered to.

VL: Critics argue that NIL deals could create inequities or even a “pay-for-play” system in college sports. How do you respond to these concerns, and what safeguards could be put in place?

Aditya Shankar: I believe that NIL was specifically brought in to address the inequities that were existent amongst college level athletes in the US. Hence, I do not have specific concerns over such a system.

Specifically, prior to 2021, college level athletes were not allowed to monetize their brand and image. This meant that most college level athletes were left with limited scholarships. However, there were still instances of athletes, who performed well and had a good brand image, that had expensive cars and in general a better livelihood. The source of such income was unexplained but were largely attributed to significant payoffs being made by universities to such students as part of their recruitment policies. This further increased the divide between college level athletes, and the level of competition in college level sports as the ones that had deeper pockets, acquired better players, and ultimately gained more on-field success. However, with NIL deals being permitted, such discrete recruitment policies have lost their value. Now, all college athletes can earn an income from their image and likeness independent of their activity on the field. Therefore, they are able to retain their amateur status while still maintaining a decent livelihood from income earned through brand based endorsements and sponsorships.

To ensure that such income remains independent of their on-field performance, the NCAA and most universities’ NIL policies already mandate for disclosure of all such deals. Such disclosure measures ensures that there is a check in place to preclude college athletes from signing NIL deals that rewards their on-field performances.

VL: The debate of NIL rights started in the U.S. but has slowly found its way in the global sports industry. How do NIL rights for athletes in the U.S. compare to those in other countries, and what can we learn from their approach?

Aditya Shankar: The main difference between the U.S. and the rest of the world is that there are no specific NIL policies or law governing athletes, amateur or professional. Such athletes are however permitted to monetize on their tangible image right under the scope of the intellectual property rights applicable to the jurisdiction where the right was enforced and exercised.

Hence, I believe that the USA system of NIL rights may not replicated exactly outside the USA, however it may garner conversations of implementing such a system in organised youth leagues that primarily have amateur players competing in them. It may also force existing image right agreements to be more athlete friendly and driven by market policies rather than being controlled exclusively by the league or broadcasters. Furthermore, standard policies on image rights may also be enforced by sports governing bodies to reduce inequalities and ensure that athletes are able to gain a fair share of the revenue earned on the exploitation of their image and likeness – albeit, the leagues, sports governing bodies and broadcasters may not be willing to let go of this profit that easily!

VL: How do team contracts in professional leagues address NIL rights? Are there common clauses that limit or expand an athlete’s ability to monetize their NIL?

Aditya Shankar: This question may have to be rephrased as the purpose of NIL rights was to ensure the amateur status of the league while at the same time allowing amateur athletes to monetise on their image and brand. In professional leagues, there are no restrictions placed on professional athletes to monetise on their image – which will again, largely fall under the scope of the intellectual property and personality right laws.

Anyhow, in professional contracts within the US – they are standard, boiler plate contracts that are pre-set on the basis of the collective bargaining agreement determined between the players’ association and the league. Such image right clauses often mandate a player to allow a team to use his/her image or likeness in team advertising, broadcasts, merchandise etc. In this regard, the athlete must ensure that their personal image right deals do not conflict with that of the team or the sponsors of the league. Moreover, in professional player contracts, athletes are not always granted the opportunity to provide their consent or review the product or post before it is published.

In professional leagues outside the U.S.A., image right deals maybe negotiated individually between a team and a player basis their brand value. Otherwise, the general norm is followed wherein the team acquires the right to the use the image rights of the player for commercial purposes.

VL: How are NIL rights being addressed in emerging sports or leagues, such as esports or niche sports? Are there unique challenges in these areas?

Aditya Shankar: I cannot offer any comment on this as I haven’t dealt with e-sports yet. Nevertheless, such NIL rights or rather image rights may have to be addressed under the scope of generative AI, deepfakes and in video games. The present intellectual property laws in most jurisdictions do not cover such matters and therefore would provide a challenge for athletes to sufficiently protect themselves and even monetize income through such generative AI and deepfakes.

VL: Looking ahead, how do you see NIL rights evolving in the global sports industry? What changes or innovations could further empower athletes to control and monetize their personal brands?

Aditya Shankar: As stated above, the growth of NIL rights amongst college level athletes in the USA may serve as a good impetus to shift the focus on athlete rights across all jurisdictions. Presently, most sports governing bodies or leagues benefit from the revenue earned from the commercial exploitation of an athlete’s image rights. However, if the benefits of the NIL model can be replicated across all jurisdictions, it may force sports governing bodies to recognise that the athlete’s must have a rightful share to the revenue earned from the exploitation of their image. This may also lead to the implementation of uniform policies across sports that cater to athlete- friendly image right deals, that not only benefit the athletes that perform the best, but everyone involved. I must add though that such a view is a bit idealistic, and I do not see sports governing bodies and even broadcasters giving up their share of the pie to athletes that easily.

VL: How do you view platforms like Virtuosity Legal in fostering legal scholarship and meaningful academic discourse within the legal community? (You may choose to avoid answering this question. As we are a budding academic blog, words of encouragement from you would mean a lot to us).

Aditya Shankar: As someone who is in the early stages of his career, and still constantly learning on the job, academic blogs such as yours definitely provide an opportunity for students and lawyers the creative freedom to explore and analyse emerging and unexplored areas of the law. Such open discourse will only foster further conversations and ideas and thereby lead to a better law and policy on such matters. I commend Virtuosity Legal in this effort and wish them all the very best!