Name, image and likeness rules have changed the landscape for team physicians, surgeons
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It has long been argued that the efforts and financial value of amateur athletes, particularly collegiate athletes, surpass the benefits of receiving a college scholarship.
Collegiate athletes have asserted that their name, image and likeness (NIL) can be used by a third party, such as the NCAA or their university, to promote products without their consent. The “right of publicity” protects against unauthorized use of an individual’s NIL for commercial or profit. Collegiate athletes have been vocal about the benefits their universities and the NCAA have received from this practice.
Significant legal challenges ultimately led to the NCAA changing its NIL rules in June 2021. Student-athletes with NIL deals can leverage their personal brand for their financial gain.
NIL rule
The NCAA NIL rule has three parts: the athlete must follow their state’s laws; if there are no state laws regarding NIL, then the athlete can still participate in this process; and athletes are allowed to have a marketing agent, which is a professional service provider who works to develop and improve the athlete’s NIL value. The right of publicity, which is guided by the NCAA NIL rule, also affects high school student-athletes. High school athletes are advised to thoroughly check their state NIL regulations, which vary by state. The NIL rule change has created significant wealth for student-athletes, with numerous collegiate athletes earning more than $1 million annually.
NIL regulations have also forever changed college sports. Furthermore, NIL considerations are now impacting high school and young adolescent athletes. The wealth available due to an athlete’s marketability – and not necessarily entirely related to one’s athletic prowess – has tremendous implications for team physicians, orthopedic surgeons and health care providers. Understanding NIL rules and regulations for all athletes is now as essential as knowing the proper protocols for treating medical and orthopedic conditions in athletes. There is also greater financial liability for providing appropriate medical care.
Professional athletes are primarily governed by the regulations of their leagues and players’ unions, which often have established protocols for medical care. Athletes with NIL agreements are subject to school and NCAA policies, with more changes coming as the process continues to evolve and courts decide in favor of collegiate athletes receiving monetary compensation for sports participation.
Ethical considerations
Implementing the NCAA NIL rule raises several ethical considerations. Physicians entrusted with the care of athletes with NIL agreements must be acutely aware of potential conflicts of interest that may influence treatment plans or be perceived as barriers to optimal care. For instance, an athlete may endorse a business, such as a physical therapy group, that the physician may feel compelled to refer to in the event of an injury, even if the physician believes rehabilitation would be enhanced at another facility. Another potential pitfall is an athlete may have an NIL deal predicated on the ability to participate in sport. If medical care is perceived as inadequate, the physician could be liable for the athlete’s breach of contract and incur financial losses.
Safeguarding an athlete’s medical record, which is already governed by HIPPA guidelines, becomes even more crucial as public exposure could directly affect marketability. Unauthorized discussions with a parent, marketing agent or acquaintance could lead to a public disclosure that may hamper a student-athlete’s ability to achieve maximum NIL value, thereby creating a potential for liability, including future earnings.
Care in the era of NIL
Physicians must prioritize the athlete’s health and desire to return to sport over all other influences and distractions. The care of athletes in the era of the NIL rule will necessitate additional documentation and administrative tasks. At the professional sport level, these tasks are often handled by the nonphysician medical staff, who document every interaction, organize care instructions, coordinate physical therapy and return to sport, and facilitate discussions with all parties interested in the athlete’s care. At the amateur level, the physician must ensure complete documentation. The absence of documentation allows for discrepancies in future interactions and increased potential for legal disputes. In addition, athletes with significant success at NIL value will have representation, such as a marketing agent, requiring improved communication and explanation beyond the usual patient request.
As health care providers, we hope to stay true to our education and experience when discussing treatment and rehabilitation despite the absence of definitive, evidence-based guidelines for many conditions. The pressure to expedite an athlete’s return to sport may be celebrated by coaches, parents, teammates and athletes. However, if the return results in additional injury or is perceived as too ambitious, it may affect NIL opportunities and physicians may be considered liable for lost NIL opportunities. Developing injury prevention programs and working closely with coaches and teams can help mitigate unnecessary injuries. The physician’s role should be expanded to educate athletes on their overall health, wellness and potential risky behaviors. Programs to improve athletic performance are effective ways to develop trust with athlete and agents.
Changing landscape
One of the most obvious consequences of the NIL rule changes are the perceived potential value athletes have of marketing their NIL from their high school through college years. Typical malpractice insurance policies should be discussed with legal experts to ensure adequate coverage if athletes and agents bring legal proceedings against the treating physician, suggesting the provided care reduced or eliminated an athlete’s current and future NIL revenue potential. The results of excellent patient care may be acceptable to return an athlete to sport yet fail to return the athlete to preinjury levels of performance. Meticulous documentation, informed consent, and appropriate communication with athletes and their representatives should help minimize the risk of adverse outcomes. Some early discussions have included asking athletes to sign a waiver that their treating physician or surgeon is not liable for their NIL value.
NIL regulations have changed the landscape for team physicians and surgeons caring for competitive athletes. The NIL changes also have introduced complexities and nuances like those seen in professional sports. The passive attitude of covering a game or event without a structured approach is likely to expose the physician to liability regarding the outcome of medical care as well as the impact of care on the athlete’s NIL value. To manage associated risks, physicians need to ensure they have a comprehensive approach to risk management, including meticulous and thorough documentation of all interactions with the athlete, consistent communication and reassessment of malpractice liabilities.
Understanding the impact of NIL rules at the collegiate and high school levels, including the potential revenue involved and associated liability, should inspire physicians to uphold the highest standards of care. This includes incorporating all medical staff members into the care paradigm, a consistent effort at open communication to develop trust with athletes and their support teams. A thorough understanding of current and future NIL regulations is needed to effectively navigate the evolving responsibilities and liabilities of collegiate and high school sports.
- References:
- https://ncaaorg.s3.amazonaws.com/ncaa/NIL/NIL_InterimPolicy.pdf. Accessed June 5, 2024.
- https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-likeness-policy.aspx. Accessed June 5, 2024.
- https://www.ncaa.org/news/2024/4/22/media-center-division-i-board-of-directors-ratifies-transfer-nil-rule-changes.aspx. Accessed June 5, 2024
- For more information:
- Anthony A. Romeo, MD, is the Chief Medical Editor of Healio | Orthopedics Today. He can be reached at Healio, 6900 Grove Road, Thorofare, NJ 08086; email: orthopedics@healio.com.
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