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NIL Watchouts: Negotiating Favorable Terms with Your University

Fri, 12 Dec 2025 07:00:03 GMT

A Playbook for Success

Recent news reports of student-athletes being sued when they transfer colleges underscore how important it is to understand and effectively negotiate their rights regarding name, image, and likeness (NIL) agreements between universities and collectives.

As NIL deals between student-athletes and universities evolve, the best agreements are the ones that protect your brand, keep you eligible, pay you fairly for real deliverables, and protect you when you leave. Here’s a concise playbook of favorable terms to think about when a school presents a student with an NIL or revenue-sharing agreement.

Examples of Key Terms to Prioritize (This List is Not Exhaustive)

Clear, direct compensation
Specify what you’re paid for (appearances, content, ads, events) and when payments are due.
Tie compensation to deliverables—not athletic performance, playing time, or roster status.
Include late-payment and audit rights to verify amounts.
Fair market value and rate protections
State that compensation reflects fair market value.
Add a “most-favored nation” clause so you’re not paid less than similarly situated teammates for the same deliverables, where appropriate.
Narrow scope of rights
Limit what NIL uses you’re granting (e.g., team media, in-venue, school social channels).
Prohibit “all media now known or hereafter devised” unless fairly compensated.
Reasonable term and survival
Keep the term short (e.g., season or academic year) with no automatic renewals beyond enrollment.
Avoid perpetual rights; if the school needs archival use, make it noncommercial and limited.
Approval and control
Require your prior written approval for any third-party licensing or materially new use.
Reserve the right to reject uses that conflict with your personal brand or existing deals.
No broad exclusivity
If any exclusivity is necessary, keep it narrow (limited category, limited channel, limited time).
Carve out your ability to do independent deals that don’t use school IP.
Sublicensing and royalties
If the school can sublicense your NIL (e.g., merchandise, broadcasts, video games), require:
Your approval rights,
Disclosed partners, and
Additional compensation or royalties with clear reporting.
School IP and co-branding
Clarify when you may use school marks, uniforms, or facilities in content.
If co-branding is allowed, set approvals, brand guidelines, and any license fees upfront.
Category and conflict rules
List prohibited categories (e.g., gambling, adult content) and define “conflict” narrowly.
Add a process and timeline for school conflict checks so deals aren’t stalled indefinitely.

Red Flags to Avoid

Perpetual, worldwide, royalty-free rights to your NIL.
Compensation contingent on wins, stats, awards, roster status, or enrollment decisions.
Uncapped exclusivity that blocks third-party deals or future pro endorsements.
Sublicensing without approval or additional compensation.
One-sided termination or vague “sole discretion” clauses.
Broad morality clauses untethered to objective standards.

Quick Checklist Before You Sign

Are compensation, deliverables, and payment timelines specific and in writing?
Are rights limited to defined uses, with a clear end date tied to enrollment?
Do you retain approval rights over sublicensing and sensitive uses?
Are exclusivity and category restrictions narrow and clearly defined?
Do you have audit rights, dispute steps, and a cure period for alleged breaches?
Does the agreement preserve your ability to do third-party NIL deals?

This post provides general information and is not legal advice. Consider having a qualified attorney review the agreement. The right terms help protect your eligibility today and your brand value tomorrow.

Texas Physicians: Choosing an Entity to Reduce Vicarious Liability

Thu, 11 Dec 2025 04:27:40 GMT

Entity Choice Matters

For Texas physicians, the choice of practice entity is a core risk-management decision. The right structure can reduce personal exposure to vicarious liability for the acts of other owners, employed clinicians, and staff—while complying with Texas’s corporate practice of medicine rules. Below is a concise overview of the common options, how they address vicarious liability, and practical tips for structuring and maintaining protections.

Why Entity Choice Matters

Vicarious liability arises when an owner is held responsible for another’s negligence (e.g., a partner’s malpractice or a staff member’s error).
Most professional entities insulate individual physicians from liability for others’ acts—but not from their own negligence or from the entity’s obligations they personally guarantee.
Protection depends on proper formation, ongoing compliance, and clear governance and supervision practices.

Common Texas Structures for Physician Practices

Practical Design Tips to Strengthen the Shield

Keep physician ownership and control compliant with Texas corporate practice of medicine requirements.
Use written governance documents that allocate clinical oversight and administrative control clearly (e.g., medical director duties, supervision protocols).
Maintain entity formalities: separate bank accounts, documented meetings/consent actions, and clear employment/independent contractor agreements.
Ensure adequate malpractice and entity-level insurance (and tail coverage on exit).
Calibrate compensation and incentive models to avoid creating unintended “control” that could support vicarious liability.
Periodically review supervision and delegation policies for APPs and staff; document training and QA/peer review processes.
For LLPs, monitor renewal filings and financial responsibility requirements to avoid lapses that can forfeit protection.

Choosing Among the Options

Small groups frequently select P.A. or PLLC structures for simplicity and strong protection from others’ malpractice.
Multi-physician groups that prefer partnership-style economics sometimes use an LLP to reduce partner-to-partner exposure while retaining partnership tax and governance features.
Systems or community models may consider an NPHO, but certification and strict observance of independent medical judgment are critical.

Bottom Line

P.A.s, PLLCs, and LLPs are the most common Texas vehicles for physicians seeking to reduce vicarious liability. They can shield individual doctors from others’ malpractice if properly formed, maintained, and operated—while leaving each physician responsible for their own professional acts and ethical obligations. Work with healthcare counsel to match the entity to your practice model, verify ownership and control rules, and build governance and insurance programs that preserve the liability shield.

This post provides general information, not legal advice. Consult Texas healthcare counsel for advice tailored to your practice.

"...Fine for Your Uncle Bernard but not for Your Saint Bernard." Court Ruling May Soon Change Pet-Telehealth Laws

Tue, 15 Oct 2024 16:46:25 GMT

Pet-Telehealth in Texas

Key Takeaways:

A federal court of appeals determined that the State of Texas, through its veterinarian-client-patient-relationship (VCPR) law, violated a veterinarian’s First Amendment right to freedom of speech when he was penalized for providing patient-specific advice via email without first performing a physical exam.

The decision by the court may mean that Texas veterinarians can give professional advice through electronic means, without conducting an initial physical exam, as an exercise of their First Amendment right to free speech. This contradicts current Texas VCPR law.

In contrast, Texas law allows physicians to conduct patient visits for babies and non-communicative adults via telehealth.

See below for a more detailed summary.

Case Summary

This is the third time that this case was before the United States Court of Appeals for the 5th Circuit. In Hines I , Dr. Hines lost his case because the appellate court determined that the VCPR law did not regulate speech and therefore did not violate his First Amendment rights. In Hines II , however, case law changed. Regulations affecting occupational speech were now subject to the same scrutiny as non-occupational speech. Accordingly, Dr. Hines revived his lawsuit. His case eventually found its way back to the appellate court where the court reversed and remanded for the district court to decide whether Dr. Hines’ speech was being regulated.

Now in its third iteration, the 5 ^th Circuit reviewed this case on appeal from Dr. Hines after the district court ruled in favor of the State of Texas (the “State”). The lower court determined that “the [VCPR] law (1) regulates Dr. Hines’s speech, rather than his conduct; (2) does so in a content-neutral way, warranting intermediate scrutiny; and (3) survives intermediate scrutiny because it was “narrowly tailored to the [State’s] substantial interests, which [were] unrelated to the suppression of speech.”[1] Because of the manner in which the parties asked for dismissal of the case, through summary judgment, the appellate court had to look at the lower court’s determinations all over again (i.e., de novo ).

The appellate court determined that Dr. Hines’ act of providing patient-specific advice through emails was speech , not conduct and the VCPR law directly regulated his speech as opposed to incidentally through the regulation of his conduct. Specifically, the court looked at “whether the physical-examination requirement primarily affects Dr. Hines’s speech (“communication of a message”) or his conduct by looking at what “trigger[s] coverage under the statute .”[2] Dr. Hines was penalized by the board for his communication with an owner when he made a diagnosis and recommended a treatment plan, not for the substance of the diagnosis or treatment plan or for reviewing charts or different medical reports. Therefore, the court determined that the VCPR law primarily, not incidentally, regulated his speech.

Furthermore, the court determined that the VCPR law regulated Dr. Hines’ speech in a content-neutral way, warranting intermediate scrutiny, the lowest tier of scrutiny the State had to clear. According to the court, it was unable to do so. Why? To survive intermediate scrutiny, a restriction on speech must be narrowly tailored to serve a significant governmental interest.

The court found that while the State had legitimate interests in protecting animal welfare, “the State [] failed to show that the alleged harms to animal welfare in the context of the physical-examination requirement [were] real.”[3] The court pointed out that there were “no published reports of veterinarians providing inadequate or substandard care via virtual care” nor had there been such reports of Dr. Hines doing so.

Even if the harms were real, the court pointed out that the VCPR law actually allows for a VCPR to be established without a physical exam as the veterinarian can establish knowledge of an animal…” if the veterinarian has recently seen, or is personally acquainted with, the keeping and care of the animal by: (1) examining the animal; or (2) making medically appropriate and timely visits to the premises on which the animal is kept .”[4] While the underlined language contemplates visits to herd animals, there is no explicit prohibition on small animal ( e.g. , dogs and cats) home visits.

Finally, the court determined that the VCPR law did not survive intermediate scrutiny because it was not tailored to the State’s specific interest. Specifically, the court noted that the State failed to provide alternatives or less restrictive means to narrowly tailor the VCPR law. However, the court reviewed alternatives that Dr. Hines proposed including:

Instruct[ing] veterinarians not to give veterinary advice without a physical exam if, in the speaker’s professional judgment, he or she cannot provide useful help,
requiring “a trip to the veterinarian only when reasonable under the circumstances,” or
requiring consent from owners before performing telemedicine without a physical exam.

Ultimately, the appellate court found in Dr. Hines’ favor and was apt to point out the stark difference between human medicine and veterinary medicine, asking why animal welfare would be held in higher regard than human welfare, especially since pets are considered property in the State of Texas. This may not be the “tail end” for the Hines case as the State could appeal, but for now the court has determined that the VCPR law in Texas violates a veterinarian’s speech in particular circumstances when it comes to pet-telehealth.

For further discussion, contact Dr. Priscilla Bowens, DVM, MPH, JD, at priscilla.bowens@agbowenslaw.com.

[1] Hines v. Pardue , No. 23-40483, at *7 (5 ^th Cir. Sept. 26, 2024).

[2] Id . at *12 (emphasis added).

[3] Id . at *18.

[4] TEX. OCC. CODE § 801.351(a)(2) (emphasis added).

Welcome to our new website!

Fri, 16 Aug 2024 20:13:24 GMT

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Our new website also has an integrated Client Portal, meaning you are able to access your case documents, correspondence, and calendars directly from our website!

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