By: Bruce Siegal, Esq.
Did you know that college student-athletes are not only scoring points on the field but also racking up likes and shares on social media?
In the evolving world of influencer marketing, these student-athletes have emerged as a new breed of social media influencers, captivating their followers with authenticity and credibility. And opportunities are by no means limited to elite athletes. Join me as I dive into the exciting opportunities and potential pitfalls that await these new influencers in the realm of social media branding partnerships.
Social Media Meets Marketing.
Social media has changed the way people and companies interact with their audiences. Social media influencers have joined forces with brands to forge powerful marketing tools, generating compensation for the influencers and brand exposure and product sales for the participating brands. The role of the social media influencer is to endorse and promote products or services on their social media platforms (e.g., Instagram, Facebook, YouTube, TikTok) in concert with the brands, to affect the buying habits of their followers.
In the wake of name, image and likeness (NIL) reforms, student-athlete influencers have emerged on the scene, and may now enter agreements to earn compensation and establish relationships with appropriate corporate brands, creating nice opportunities while burnishing their brands.
At the same time, legal issues impact the way social media influencers and brands operate. This note will explore some of the key legal/contractual issues that social media influencers and brands must be aware of when engaging with their audiences.
There are no special legal exceptions for student-athletes.
While student-athlete influencers reportedly have fewer followers than professional influencers, their engagement rate (measured by likes, comments, and shares relative to the number of followers) is well above-average, reflecting a solid relationship with followers, who view student-athlete influencers as authentic and credible.
The Contract is Key.
Recognizing that student-athletes have less experience in working in a professional setting, creating content, meeting deadlines, and the like, it is essential to develop communications, agreements and guidelines between the student-athlete influencers and the brands to ensure success. Brands (and schools, and collectives, as applicable) should err on the side of over-communicating with busy young influencers.
Social media influencers enter into influencer agreements with brands to activate social media sponsorships. Influencer agreements set out the terms and conditions under which influencers provide services, which may include posts and personal appearances.
The influencer’s obligations and services should be carefully spelled out, including requirements for how products or services will appear and be endorsed; social media platforms; required hashtags; schedule for timing and frequency of the posts, and any required attendance at product launches or other events; graphics displaying products or packaging; among others.
Endorsers will have occasion to ad-lib and express opinions in their voice, and messaging should be original and authentic. To guard against the possibility that endorsers may make false claims or fail to include necessary disclosures, companies often provide the endorsers with talking points regarding factual information, but they should be careful about scripting too much. Companies often require prior approval of content before it goes live.
An influencer agreement should require compliance with Federal Trade Commission (FTC) as well as state regulations and guidelines. Specifically, the influencer must disclose their relationship with the brand they are endorsing and make recommendations that are based on opinions and experiences that are “honest and truthful.” The FTC and state attorneys general enforce guidelines related to disclosure and transparency in marketing campaigns. The FTC has issued guidelines that require influencers and brands to disclose any material connections – such as getting money or free products! Such disclosure must be communicated via conspicuous statements or hashtags (e.g., #ad or #sponsored).
Influencer agreements may include the link to the
FTC’s disclosure guidelines, with the influencer confirming their review and compliance. (View Social Media Influencer Guidelines here)
Also, to the extent that the influencer has followers in different countries, advertising regulators in other countries may impose certain additional “fair advertising” rules.
Intellectual property rights.
The influencer agreement should address IP rights owned by the company, specifying the limited rights that the influencer has to use the company’s IP in posts following branding guidelines, and also cover ownership of the materials created or developed by the influencer while providing endorsement services.
The agreement should also cover the influencer’s acknowledgment of the scope with which their posted content and NIL may be shared, revised, reposted, and disseminated by the company for promotional and advertising purposes.
Revision or removal of posts and termination.
The company will want to monitor posts and require revision or editing of any posts that are out of compliance. Ultimately, the company should have the right to remove any of the influencer’s posts that violate the terms of the agreement, including moral clauses, or non-compliance with applicable laws and guidelines.
These provisions are not intended as exhaustive, and influencer agreements should certainly be carefully tailored to the deal and also include standard contractual provisions such as terms, termination events, payment terms, reimbursement of costs, confidentiality, notice requirements, reps and warranties, and indemnification and governing law.
Social media influencers play an important role in the digital economy, but influencers and brands must also be aware of best practices as well as pitfalls. This note has explored some of the key legal and contractual issues that social media influencers and companies must navigate, including clear mutual obligations, disclosure and transparency, intellectual property, and international law. By understanding these issues and taking steps to ensure compliance, social media influencers can build successful careers, while they and their branding partners protect themselves from legal consequences.