Newsletter #1 | Monday, July 12, 2021
Welcome to the NIL Newsletter by Optimum Sports Consulting - providing valuable, actionable NIL resources for athletes, administrators, agencies and other sport professionals.
Welcome to the NIL Newsletter by Optimum Sports Consulting.
Through this newsletter and our additional legal and advisory resources, we aim valuable, actionable NIL resources for athletes, administrators, agencies and other sport professionals.
Every Monday (at 8:30am ET) and Thursday (at 8:30am ET), we will catch you up to speed with the latest news surrounding Name/Image/Likeness (NIL) in college athletics- directly to your email inbox. This newsletter is currently FREE.
Follow us @OptimumSportsConsulting on Instagram and @OptimumSportsC on Twitter for daily content.
Major News as of July 12
Barstool Sports creates “Barstool Athletes”, potentially violates “no gambling sponsorship policy” by NCAA, state laws
Barstool Sports Founder Dave Portnoy started “Barstool Athletes,” an impromptu NIL marketing agency, on July 1st. Sports Lawyer Darren Heitner pointed out that Barstool Athletes is working on its branding by filing trademark applications with the USPTO.
Within days, Barstool posted photos of student athletes in uniform on their social media channels- potentially violating school/state NIL policies and breaking intellectual property restrictions.
Barstool Sports (owned by Penn National Gaming) is unquestionably in the gambling space. States like Alabama, Illinois and Louisiana ban working with gambling/casino companies in their NIL legislation, and institutions in states without laws have also followed their lead. Sports Lawyer Dan Lust detailed this story.
Lawyers caution NCAA athletes about partnering with companies like Yoke Gaming- a paid celebrity version of Twitch
Yoke Gaming, an app that “enables you to play video games with your favorite athletes” is being used as an example of when to read the fine print before signing an NIL deal, according to Attorneys Darren Heitner and Dan Lust.
NIL Network reported that Yoke Gaming paid athletes $20 each if they posted on their social media. But the fine print of the deal included allowing Yoke to have an athlete’s “rights of publicity worldwide, forever, royalty free.”
Nobel Prize winning economist and NCAA expert witness call’s Justice Kavanaugh’s Alston concurrence a “bull— opinion”
Nobel Prize winner and University of Chicago economist James Heckman, who served as the NCAA’s expert witness in Alston v. NCAA, called US Supreme Court Justice Kavanaugh’s “rant” a “bull— opinion.”
“Kavanaugh was just insane in thinking this was an athletic market, and they were squeezing salaries down,” Heckman said. “To me, it is part and parcel of something that really bothers me about the whole discussion of everything- a little incident, a salient event, becomes magnified into being the whole story.” The Supreme Court ruled 9-0 in favor of Alston.
Heckman based his analysis ahead of Alston on two previous national surveys- concluding that sports participation already provided a “vehicle for social mobility,” as well as “life-long benefits” to athletes.
What’s Coming Next on NIL
July 23, 2021 | Arizona’s state NIL policy goes into effect
August 28, 2021 | Week 1 of the NCAA FBS Football
September 1, 2021 | Connecticut’s state NIL policy goes into effect
Legal Updates
The NCAA adopted an interim name, image and likeness policy. “This is an important day for college athletes since they all are now able to take advantage of name, image and likeness opportunities,” NCAA President Mark Emmert said. The NCAA also provided education materials with their press release.
The NCAA was denied a motion to dismiss in their class-action lawsuit (House v. NCAA). The case has the prospect of athletes receiving compensation from college sports TV rights fees. Judge Claudia Wilken wrote in her decision that to establish injury “a plaintiff need not establish that it has a legal entitlement to the compensation in question.” Rather, a “plaintiff can show that it was injured in fact by alleging that it was deprived of the opportunity to receive compensation it otherwise would have received but for the challenged conduct.”
FOR ATHLETES
Examples of Success Last Week
Miami QB D’Eriq King has inked deals with College Hunks Moving, Murphy Auto Group, and The Wharf.
Hanna and Haley Cavinder, star basketball players at Fresno State, announced deals with Boost Mobile and Six Star Pro Nutrition is Times Square. "This is a big switch for all student-athletes," Haley Cavinder told ESPN. The twins have 3 million TikTok followers.
Tennessee State basketball player Hercy Miller, the son of rapper Master P, signed a $2 million deal with Web Apps America. "It's incredible. This is gonna change the way college athletes want to stay in school," Master P told TMZ Sports.
Nebraska QB Graham Mertz trademarked his initials in a logo for "wearable garments and clothing, namely shirts; sport caps and hats." He also included this hype video on Twitter.
Tip of the Week: Be Aware of the Words “Perpetuity, Irrevocable, Royalty-Free” in contracts
Contracts that come before you can be as dense as an Apple iPhone’s Terms of Service, but you should not sign anything until you fully understand all the details. Hiring outside legal counsel, specifically an attorney that specializes in intellectual property or general transactional work, can make a monumental difference. Always look out for phrases like “in perpetuity” or “irrevocable right to” that could have serious consequences.
FOR COLLEGE ADMINS
Notes for the Week
Athletic Director University did a two-part, in-depth breakdown of NIL representation for student athletes. Part I discusses certification, endorsements, and the agent’s role. Part II expanded on the representation machine by analyzing fee structures, licensing, and which student athletes will likely use professional representation.
Tom McMillen, President of Lead1, authored a book in 1992 detailing the doom that awaited college athletics in light of the rapid increase in coaching salaries. “My comment at the time was, if you don’t slow the arms race down, expect one on the student athletes’ side. That’s the story of the last 30 years.”
Nebraska’s #NILbraska program for all 650 of their student athletes includes lessons on networking and communication, brand building, financial literacy and compliance. Each athlete will also take a test that identifies their “talent DNA” and five to 10 best entrepreneurial attributes.
Mizzou Athletic Director Jim Sterk said, “We're planning in the fall to have classes on taxes, entrepreneurship and we'll have those seminars with our student-athletes and I think it's going to be a never-ending continuing education and it'll be housed in our Mizzou Made education programs.”
Tip of the Week: Leverage your network.
Nearly half of all states, many of which have Power-5 schools playing in them, do not have official NIL legislation in place. For schools without state laws- it is important to utilize your network, especially since NCAA HQ can offer little help. Athletic conferences have been working on general frameworks that model these laws, and it is also important for athletic compliance offices to work diligently with their university’s general counsel to form NIL action plans. Having established policies that can be easily communicated to your student-athletes can alleviate many headaches down the road. Finally, read state legislation! Many of the laws are under five pages and can be easily adopted at the school and/or conference level.
FOR AGENCIES
Takeaways and Successes Last Week
AJ Vaynerchuk and VaynerSports signed sophomore QB DJ Uiagalelei from Clemson. He is the first NCAA athlete to join VaynerSports’ NIL roster of athletes.
James Cook (Georgia), Kearis Jackson (Georgia), Derek Wingo (Florida), and Marcus Dumervil (LSU) have all signed with Loyalty Above All and will be represented by Agents Matt Leist and Eric Dounn.
Sports agent Mark Bailey estimated that he spoke with 200 college athletes since July 1. His client, Florida DL Gervon Dexter is launching an apparel line and YouTube channel.
Atlanta agents take wait and see approach as NIL era begins.
Tip of the Week: Beware of Licensing Policies.
Signing student-athletes can be exciting- especially when they come from notable institutions. But many state laws have strict and varying licensing policies regarding what SAs can wear/show/advertise in promotional materials in relation to their academic institutions. In Arizona, the only provisions an SA must follow are that they do not violate a school’s IP rights or team contract. Alabama’s law specifies, "Licensed marks, logos, verbiage, or designs" unless given permission from the university. But Arkansas, a fellow SEC school, goes as far as, “landmarks, facilities, trade dress, uniforms, songs, mascots, logos, images, symbols.” Thus, what might be permissible in one state could violate another state’s law. Since schools have a vested interest in protecting their intellectual property, it is always best to check relevant state laws (if applicable) and consult with an institution’s communications and/or general counsel office before posting promotional materials for a student athlete. A single Instagram post or Snapchat story could become an IP/legal nightmare that can ultimately jeopardize your relationship between a client and their academic institution.