Andrew Masson is an IPilogue Writer and 2L JD candidate��at Osgoode Hall Law School.��

One of the biggest names in golf that is not Tiger Woods, for breach of a $145 million deal for the exclusive use what is being Nicklaus, also known as The Golden Bear, is 82 years old and widely regarded as one of the greatest golfers of all time. During his career he won 117 professional tournaments and 18 major championships, which is 3 more than Tiger Woods. Retired Nicklaus now heads his golf course design and construction company, . Nicklaus is one of the most prominent names in golf, so this recent filing has garnered the attention of sports reporters.

On May 17, the reported court filings involving Nicklaus involved both IP use and NIL issues. In May 2007, before the concept of name, image, and likeness became ruling for college athletes, Nicklaus appears to have made a similar deal except it was for . This involved three parties: 1) Jack Nicklaus; 2) GBI Investors Inc.; and 3) Nicklaus Companies L.L.C. Nicklaus incorporated GBI Nicklaus in 1984 and he remained manager when the deal was made in 2007. This deal involved selling business and assets of GBI that related to Jack Nicklaus to Nicklaus Companies. The IP rights and activities related to both Nicklaus as a person and his golf course design and construction activities made the deal worth more than

Nicklaus Companies claims they have paid and continue to pay both Nicklaus and GBI who are not meeting their obligations. Niklaus Companies seems to have put forth for which they are seeking injunctions and damages: 1) Jack Nicklaus continues to make deals regarding his IP and excluding Nicklaus companies from them; 2) these actions are damaging to Nicklaus Companies; and 3) Jack Nicklaus has threatened to continue to do these activities by unilaterally reclaiming ownership of those rights he sold. At first, the deal appeared to transfer the numerous patents and trademarks from GBI to Nicklaus Companies, but in recent years Jack Nicklaus and GBI have not satisfied the deal. Jack Nicklaus has deals regarding his golf course designed in addition to entering a deal to profit of his NIL that excluded the company.

Notably, this story broke within days of Jack Nicklaus turning down to be the face of a new golf series. Though not directly related to this case, his decision may be relevant to broader branding issues associated with his name.

This interesting case will likely become a battle over the terms of the contract with strong arguments on both sides. From an equitable perspective, it appears Nicklaus entered an unfavourable deal in 2007 that meant in the long term he was . This term mirrors the contracts of most universities (like) where professors are not the exclusive IP owners for independent work completed during employment. These contracts can be contentious if they give off the impression that those with money can exploit resource-strapped inventors. On the other hand, the Jack Nicklaus company paid a substantial sum of money on the belief that they would retain the Jack Nicklaus IP into the future. Under the principle of of contract, the Nicklaus Company does not appear to have violated the terms of the agreement and they just want to receive what they have paid for and did not force Nicklaus and GBI to enter the contract. As this was just filed, it will likely be some time before a decision or settlement is reached. But if it gets to trial, there will likely be interesting arguments on the contracting of IP.

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Photo Credit: AJ Maestas & Jason Belzer (ADU)

Ryan Erdman is an��IPilogue��Writer and a 2L JD Candidate at��Osgoode��Hall Law School.��

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The National College Athletic Association (NCAA), a multi-billion-dollar corporation, serves as the dominant sanctioning organization for college sports in the United States. A defining feature of college sports is the amateurism that underlies all competition, where college athletes can only receive “education-related” compensation (i.e., tuition, school-supplies, room and board). To avoid ineligibility, these elite athletes cannot benefit from or be compensated for the use of their name, image, or likeness (“NIL”). However, the intellectual property rights, including the trademarks routinely protected by celebrities and professional athletes, may no longer be a concern to college athletes. Instead, they can be an exciting new opportunity for college athletes to prosper. ��

The NCAA Division I Council plans to on June 22^nd and 23^rd, 2021. All signs point to the group voting on the proposed NIL rules changes that would fundamentally alter athlete compensation. As noted, , college athletes cannot use their NIL to promote or endorse a product, even without compensation.

The movement for college athlete compensation, a controversial topic in light of the high revenue generated by college sports in the United States, has gained traction since California enacted the Fair Pay to Play Act in September 2019. Since then, 18 states are gearing up to place novel NIL laws into effect, some as soon as July 1, 2021. The legislation places immense pressure on the NCAA to enact its own uniform rule changes, as the integrity of college sports and recruiting could collapse with inequitable practices across state lines. As recently as June 19, 2021, NCAA president Mark Emmert his support for uniform NCAA policies by July 2021. The NCAA president was also to stress the need for federal laws despite any national NIL guidelines from the NCAA.

Of course, some still reject the notion that any changes are necessary, as compensation is seen to detract from the athletic and educational components central to athletic scholarships. Compensation is seen to not significantly impact most college athletes who are unlikely to receive several endorsement offers. Although the majority of athletes do not have national name brand equity, athletes will have local opportunities with smaller platforms. There are also concerns that the fast transition to the upcoming academic year leaves little room for oversight. A lack of education related to the legal process, rights and obligations has already given college athletes difficulties in the . Complications often arise when younger college athletes sign contracts with agents or when they “turn pro.” Major programs have already partnering with companies like Opendorse, which provides athletes with education on building and monetizing their brands.

But in a digital era, social media has undeniably shifted players’ balance of power in the field. Discussing NILs, the ABA has to social media as the “referee that moves the sticks of monetization.” College sports’ biggest stars are polarizing public figures, some with incredibly large followings. Even those who do not have millions of social media followers are set to cash in significantly when acting as influencers or brand ambassadors. For example, the University of Connecticut’s basketball star and AP Women’s Player of the Year, Paige Bueckers, with approximately 830,000 Instagram followers, is set to become one of the most influential college athletes on social media. Athletes with larger followings are to make anywhere from hundreds of thousands to millions of dollars in brand deals before their professional career even begins.

At a time when the NCAA is already under significant pressure, the recent unanimous Supreme Court in the antitrust case Alston v NCAA further pushes the narrative of expanded rights for college athletes. While not directly addressing the topic of NIL, the decision won by former student-athletes is a significant moment for defining amateurism in college sports, as the case dealt with restrictions placed by the NCAA on education-related benefits. As critical meetings approach and the July 1^st deadline continues to loom, the next few days could fundamentally change the model of amateurism adapted by the NCAA.

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