Physicians Under Pressure In Name, Image And Likeness Era

(Healio, Hunter Firment) — The ruling of the United States Supreme Court in National Collegiate Athletic Association v. Alston, 2021, paved the way for collegiate athletes to monetize their name, image and likeness.

Since then, the professionalization of amateur athletics has evolved rapidly, with name, image and likeness (NIL) policies expanding to apply to high school athletes in states where it has been legalized. However, many physicians fear the rapid, unregulated growth of NIL may put physicians and amateur athletes at risk.

“If done the right way, NIL can be very good,” Eric McCarty, MD, chief of sports medicine and shoulder surgery at the University of Colorado School of Medicine and head team physician at the University of Colorado, told Healio. “But right now, it is out of hand and continues to take turns and courses that put a lot of entities and people in an uncomfortable position.”

New considerations

When treating an athlete with NIL opportunities, Robin V. West, MD, president of the Inova MSK Service Line and team physician for the Washington Nationals, said there are new considerations for both the athlete and the physician.

“As a surgeon, the shift is that these athletes are viewing their bodies from more than just the medical or injured aspect but looking at them as business assets,” West, a Healio | Orthopedics Today Editorial Board Member, said.

Because of that shift, Brian D. Anderson, JD, partner and global head of the sports industry team at the international law firm Sheppard Mullin, said physicians need to recognize that high school or collegiate athletes with NIL opportunities should be treated like professional athletes.

“It does not change the underlying diagnosis and medical advice, but it is more about appreciating the stakes and the pressures that are involved,” Anderson told Healio.

The addition of high school athletics to the NIL landscape poses its own set of unique challenges, according to West.

“This is a different kind of liability because now they have these high school athletes who potentially could earn $8 million a year,” West told Healio. “But if they tear their ACL their senior year and you reconstruct it and they do not get back to play, then all of a sudden are you then bound to that $8 million a year that he potentially could have made?”

Anderson also said high school or collegiate athletes with NIL opportunities may have NIL representatives, agents, accountants and parents involved in their careers and wanting a say in the decision-making process. To navigate the pressures that external stakeholders may place on athletes, Anderson recommends athletes have adequate legal representation and emphasized the importance of involving family, guardians and loved ones to help look out for the best interested of the young athlete and provide crucial support.

“I would recommend having a lawyer and a trusted advisor to help navigate [NIL] issues,” Anderson said. “There are a lot of intermediaries involved that may not have [the athlete’s] best interests in mind. At the high school level, most of these athletes are not legally allowed to sign a binding contract. The parents need to be involved and sign the contract as well to make sure it is enforceable.”

Mental demands

In addition to the physical demands athletes may already experience from performing on the field, NIL has introduced an increased mental burden as well, according to Alex B. Diamond, DO, MPH, FAAP, FAMSSM, professor of orthopedic surgery, pediatrics and neurological surgery at Vanderbilt University Medical Center and team physician for Vanderbilt University.

“It is that dual threat of they are just regular people like the rest of us, and they go through the same things we do, but they also have this entirely separate world that is complex and intense and public that can affect their health and well-being,” Diamond told Healio. “NIL only acts to amplify all of those things.”

He said student athletes from disadvantaged backgrounds may even become “breadwinners” for their families in the NIL era, which can pose additional pressure to provide at such a young age.

The sense of a student athlete’s self-worth may also be tested by the pressures of NIL contracts and opportunities, according to Peter J. Millett, MD, MSc, orthopedic surgeon and partner at The Steadman Clinic in Colorado. Because athletes may associate self-worth with performance, he told Healio an athlete may begin questioning their self-worth after an injury that may prevent them from playing.

“Sometimes there is a level of grief that sets in, an imposter syndrome type situation where they start to feel like maybe they were not as good as they thought they were, or they did not reach their potential because of this injury,” Millett, a Healio | Orthopedics Today Editorial Board Member, said.

Transfer portal

Increased use of the NCAA transfer portal — a compliance tool used to manage the student-athlete transfer process — has also created challenges in the NIL landscape. According to McCarty, the transfer of student athletes can happen quickly and sometimes there is a lack of communication on where they transferred.

But just because a player may leave an institution, that does not mean they leave the physician’s care, according to Diamond.

“They are always still your patient, whether you are actively treating them or passing them along to a friend or partner or colleague,” Diamond said. “You have to do the right thing regardless of whatever emotions may be there from a school team perspective. We are part of that team, but first and foremost we are providers for that patient.”

McCarty said physicians want to be able to adequately care for student athletes transferring into their institution, as well.

“If we have an athlete coming in, we also want to take care of that athlete if they are having surgery or treatment for an injury,” McCarty said. “We want to make sure that they are taken care of when they come in and get all the records.”

However, with no national shared electronic medical record database for student athletes, physicians may not have all of the documents needed and may need to rely on the athletic trainers and administrative staff to obtain medical records from previous institutions, according to McCarty.

Private equity

As NIL contracts continue to increase in value, private equity firms may start to dip their toes in the NIL pool, which may lead to some positive outcomes, such as providing more money to the athletic program, according to Anderson, who represents teams, leagues, sponsors and investors in the sports industry. He said private equity firms can also provide “expertise in professionalizing organizations that have typically been departments within nonprofit academic institutions.”

“I am sure there are efficiency gains that a smart private equity fund would be able to find and optimize,” Anderson said. “In terms of maximizing media rights and revenue generation and bringing in expertise in commercializing the stadiums and the venues, it could be a good thing.”

However, Millett said the entrance of another external stakeholder would only further increase the risk and liability placed on physicians as there may be “significant legal ramifications for poor outcomes.”

“The medical responsibility gets heightened, and if there are increased financial incentives, you can argue if there is a bad outcome that there are bigger lost earnings. It creates a situation that can be challenging,” Millett said.

Advocacy

According to Diamond, the advanced professionalization of youth sports is a major concern, as children should participate in sports to learn the game, build fundamentals and learn about fitness and exercise.

“We are throwing those aside when we start bringing in this concept of social media likes and presence, and contracts and money,” Diamond said. “We are eroding that base of what makes sports so special at a young age.”

With the added pressures and money surrounding student athletes, Diamond said it is important that physicians advocate for their patients and provide them with an outlet for education and trust in the NIL era.

“That is where we can be effective, providing them that support and safe place,” he said. “We are an independent group that certainly care about their success on the field or court, but our only responsibility is their health and wellness. We can be a safe place for them to raise those concerns and questions with us, and we can hopefully help them navigate this new space.”

West said specialty societies can also play an important role in advocating for both physicians and athletes in the NIL landscape.

“We do not have the legal backing, but we can go and explain the surgeon’s role. We can help to identify that, define it and advocate for the surgeons, which ultimately we are advocating for our patients,” West said. “We can stay involved by understanding [NIL], by educating ourselves on the latest and greatest of what is going on with NIL and then also representing our members.”

Advice

As the NIL landscape continues to develop, Diamond said the hope is it “becomes more straightforward.”

“We see [NIL] being the Wild West right now,” Diamond said. “The hope is that the larger systems and governing bodies will start working together to provide guardrails and guidance to help with this because the structure helps the families and the kids.”

Regardless of the structure NIL takes as it evolves, Diamond said it is important to recognize that it is not going away, and physicians will need to be involved with the student athlete beyond their injury.

“We have to understand that these [injuries] affect their overall health and well-being,” Diamond said. “We need to be better about recognizing and referring to where they need to be. This is a time where we have to work as a collaborative unit. It is not just the physicians and athletic trainers, but our sports psychologists, mental health professionals and academic partners. It is using that whole network as available to the students and trying to connect them to the right people sooner rather than later.”

According to Millett, it is also important for physicians to overcommunicate with the patient and their team, and to continue to lean on their medical expertise and judgement.

“Do not get caught up in all the noise of the media or the press or the pressure from the team,” Millett said. “If the patient is ready to return to play, you can clear them. If they are not ready to return to play or it is unsafe for them, you do not clear them. If they need surgery, you recommend surgery. If surgery is optional, you tell them it is optional, and then you do a shared decision-making process to help figure out what the best solution is.”

Surgeons should also remain educated on the latest developments in NIL and participate in policy formation and advocacy of both physicians and athletes, according to West.

“The most important thing is staying athlete-centered,” West said. “As this commercialization of sports continues to grow, how do we stay true to our focus and our mission?”

Although the appropriate care of student athletes should be one of the top priorities of physicians, McCarty said it is also important for physicians to protect themselves in the face of financial risk and liability.

“It is important that the physicians make sure they have the appropriate malpractice insurance for the reason that these athletes, because they now have a value attached to them when they are in this NIL, may also have people or agents or attorneys now looking at that value in case they get hurt and cannot return,” McCarty said. “Unfortunately, that is becoming more common, and we need to make sure that physicians and any providers are protected as we do the right thing for these athletes.”