NIL Newsletter #10 | Thursday, August 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 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 and see past Optimum Sports Consulting Newsletters here.
This Thursday’s Newsletter Includes:
Recapping NIL news this week
Exclusive Interview with Conduct Detrimental’s Dan Lust
ICYMI: Professional Sports Might Be the Next Industry to Dive Into NIL
Recapping NIL This Week
Members of the NCAA’s Constitution Committee Announced
Former U.S. Secretary of Defense and Texas A&M President Robert Gates will chair the 23-member NCAA Constitution Committee, scheduled to meet this November.
"Each of the appointees offers important insight on the transformation that's needed for the future," NCAA president Mark Emmert said. "The time is now for substantive change. And future change must focus on serving student-athletes."
University of Louisville Advises All Student Athletes to Cease Involvement with Barstool Sports
Louisville Assistant AD of Student-Athlete Leadership & Development, Alyssa Murphy, notified student athletes to cease involvement with Barstool Sports on Monday.
“Barstool Sports does not comply with University of Louisville policies and it does not comply with the criteria outlined in the Kentucky Governor’s Executive Order.”
Penn National Gaming, which operates casinos across the country, owns a 36% stake in Barstool Sports. Barstool Sportsbook began in September of 2020 in the state of Pennsylvania, and is now operational in four states. Sports wagering (besides horse racing) is illegal in the state of Kentucky.
Clemson QB D.J. Uiagalelei Signs NIL deal with Dr. Pepper
Clemson quarterback D.J. Uiagalelei will be a part of Dr. Pepper’s “Fansville” ad campaign during the upcoming college football season. Dr. Pepper announced its partnership with Uiagalelei on Wednesday, officially making him the first active college athlete to participate in the commercials.
Forbes’ Kristi Dosh reported that Clemson’s trademarks and branding aren’t part of the Dr. Pepper campaign due to South Carolina’s NIL legislation, which specifically prohibits using an institution’s IP.
Section 59-158-20 E. of SC’s law: “An intercollegiate athlete at an institution of higher learning may not use the institution of higher learning's facilities, uniforms provided by the institution of higher learning, or the institution of higher learning's intellectual property, including, but not limited to, the unauthorized use of a registered trademark or product protected by copyright, in connection with the use of the intercollegiate athlete's name, image, or likeness activities.”
Interview: Conduct Detrimental’s Dan Lust Talks NIL with Optimum Sports Consulting
After a week of new deals and developments in the NIL space, sports law attorney Dan Lust sat down to discuss Louisville’s ban on Barstool Sports, Quinn Ewers electing to leave HS early, and much more with Optimum Sports Consulting.
Interviewed by Austin Meo (@AMeo31)
1. The University of Louisville became the first school to ban their student athletes from working with Barstool Sports- could this be the end of Barstool Athletes?
Even though 150,000+ athletes have reportedly signed up with Barstool, I would be surprised if all of them make it to the finish line. If Louisville, a premier D1 program, is going to take that stand, it would be odd if no other school followed suit. Barstool can get around compliance issues like Lululemon did, but it’s another issue if the school doesn’t want its student athletes doing deals with them. That seems to be Louisville’s stance- the company in and of itself does not comply with Kentucky law.
2. Quinn Ewers, the nation's #1 football recruit, decided to forgo his senior year of HS because of Texas' ban on NIL rights for high schoolers. Do you think HS NIL might be the next frontier for NIL legislation?
We have to follow the market- we know that there is a market for college football on television at the national level. In certain markets, there’s certainly money in high school football. I don’t think there’s a high school national tv market quite yet- which is where the money would really come from. I think it’ll happen at some point, but I don’t think we’ve reached the fever pitch like we were at for college sports for decades (maybe a half century).
3. Attorney Jeffrey Kessler recently joined the In re College Athlete NIL Litigation (formerly known as House v. NCAA). How did Alston set this case up and how much more damage can the NCAA take if the plaintiffs win?
So Alston continued the NCAA’s streak of taking L’s. If the NCAA had won, that would have disrupted a lot of positive momentum that had been built in the lower courts. There is more to lose here. If House/Prince win on this case, that’s the definition of NIL- which could encompass television contracts, etc. So there is another potential massive loss to be had that could affect conferences and schools. On substance, I think it is a bigger case than Alston.
4. From a sports law perspective, what role should the NCAA have as it will begin restructure talks in November. How decentralized can it get before it becomes obsolete?
Someone has to police these NIL deals. Not to say there is anything inherently wrong. But if the cops took off certain days of the week, I don’t know what would happen. I haven’t seen the NCAA apply teeth to anything since July 1st with the exception of maybe the Lululemon deal. They have to step up. Someone needs to be the entity to enforce violations of school and state rules. The schools are not going to police themselves. If not the NCAA, maybe the federal government- but that would make the NCAA obsolete. I think the NCAA needs to act quickly because if they don’t insert themselves into this role, there is a very good chance the federal government will, which might render the NCAA obsolete. Their hesitancy to act has been the case for the last year and a half to two years.
5. What aspect of NIL isn't being talked about right now, but you think will be big in the future?
An issue not enough people are talking about, that I am hearing in small pockets, is this issue of international NIL. A lot of international student athletes woke up assuming they could get paid like their domestic brethren. They were told by compliance that Homeland Security would probably have to be involved. You would hope the federal government would address this in any federal bill that comes down, but you’d have to involve the DHS. There’s a world where a federal NIL bill comes down without anything on the international level. Then you will hear a real fever pitch of international athletes asking, “Why aren’t we able to get paid?” There will need to be an adjustment to student visas if you’re going to make that work. There’s a significant percentage of basketball athletes that are international. I’ve spoken to schools where they have more international student athletes than domestic student athletes. It’s an issue across sports, but I’ve been hearing vocally from the basketball crowd.
6. If you were a compliance director at a D1 school right now, what would worry you the most about the current NIL landscape?
I worry that there is too much being put on the school’s plates. There could be all these deals going across the desk and there’s nobody at a higher level (like the NCAA or a third-party) that’s vetting these deals. So I’d be concerned that my interpretation of compliance issues strictly to the law could harm my school from a recruiting standpoint. I think you have compliance people that are rubber stamping everything so they’re not seen as the “bad guy.” So I would be concerned that there’s no watchdog group policing these deals. Ideally, there’s a world where the NCAA could clear a company (I.e. Barstool, Lululemon, Home Depot or Coca-Cola) so the school wouldn’t have to make such a grand decision on all these independent companies. That would make it easier because the company had been pre-approved by the NCAA. A lack of any oversight group is concerning.
Special thanks to Dan for taking the time to discuss the latest developments in NIL with us. You can follow him on Instagram and Twitter, as well as his new website. He also has a documentary coming out about the Big Ten’s 2020-21 Football Season- check out the trailer below.
ICYMI: Professional Sports Might Be the Next Industry to Dive Into NIL
Miami QB D'Eriq King signed an NIL deal with the NHL’s Florida Panthers, becoming the first NCAA student athlete to sign with a pro franchise.
The Florida Panthers recently became the first U.S. major professional sports team, and first in the National Hockey League, to establish an NIL program that provides college athletes the opportunity to profit from their name, image and likeness.
As part of the endorsement, King will appear at Panthers games and events and work closely with the Panthers digital and social media teams to produce content to engage fanbases across South Florida.
Additionally, King will work with the Panthers to develop a merchandise collection, co-branded art and his own exclusive BB&T Center concession menu item, which will be available at all Panthers home games and events for the upcoming season.
"We are thrilled to welcome D'Eriq to Panthers Territory as our first 'FLA Athlete," said Chief Strategy Officer Sam Doerr. "D'Eriq is a superstar both on and off the field and we are excited to reach and engage South Florida sports fans in new ways through this collaborative partnership."
King already has NIL agreements with College Hunks Moving Company, Murphy Auto Group, Dreamfield, The Wharf and Panini America.
