NIL Newsletter #15 | Emoni Bates, journalism ethics + Monday major news and tips
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!
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Newsletter Update:
This will be the final week that the NIL Newsletter by Optimum Sports Consulting is completely free. Our Thursday email will provide more detailed information about paid access for subscribers, which will include exclusive content and portions of the OSC website. Stay tuned!
Major News
Top MBB prospect Emoni Bates chooses Memphis over pro options
The #4 player in the country according to 247Sports, Emoni Bates chose Memphis and HC Penny Hardaway over pro deals that were rumored to be in the seven figures. He will reunite with former AAU teammate Jalen Durden, who committed to Memphis earlier this month.
In a since deleted portion of the article, Kristi Dosh noted that an initial report from On3 stated: “Sources told On3 that Memphis pitched a NIL deal, partnered with FedEx, to both Bates and Jalen Durden, his former AAU teammate, who committed to the Tigers a couple of weeks ago.” As Darren Heitner and others noted, that school-sponsored inducement would likely violate Tennessee law (and NCAA policy). The redaction was not given an explanation. FedEx employs 30,000 Memphis-region residents.
Sports Attorney Malik S. Jackson notes, “The trick will be ensuring that institutions and their agents are not singling out providers of NIL opportunities to a degree that implicates coordination by an institution and the NIL provider to secure NIL rights from a player.”
“Conversations between recruiters and prospective student-athletes should avoid singling out NIL opportunities and (instead) focus on institutional policies, conference rules, associational rules and the relevant law for the athletic program that relates to NIL. A prospective athlete that engages in specific NIL opportunity conversations with a recruiter is rolling the dice for the player, coach and institution without fully grasping who will enforce a penalty and to what degree.” - Jackson
NIL media deals mean journalistic ethics are being tested, according to one former sports editor turned professor
Former Binghamton sports editor turned Alabama journalism instructor Tom Arenberg is among a growing list of journalists who are against paid interviews for college athletes, per The Arenblog.
News sites that cover the University of Texas and Texas A&M arranged paid interviews with multiple high-profile athletes, including two A&M football players who received $10,000 each from corporate sponsors.
Arenberg focused on three key arguments in his post: “1. The audience may conclude that an interviewee said what the interviewer wanted them to say, or embellished information to justify the money and entice other deals. 2. Having a financial arrangement with a newsmaker is a conflict of interest, especially if the newsmaker is someone who will continue to make news. 3. To enhance value, some deals might involve exclusivity, which would prevent other media from doing their own and perhaps better job of reporting on a story.”
The other POV: “This took a lot of work in order to make sure everything was on the up-and-up and by the book in terms of the new NIL rules and this uncharted territory, but it was worth it to see how excited the guys were for the opportunity,” TexAgs co-owner and executive editor Billy Liucci said on TexAgs. “I also think everyone wins here, from the content to the student-athletes and, of course, for you the subscribers.”
What’s Coming Up Next For NIL
September 1, 2021 | Connecticut’s state NIL policy goes into effect
September 1, 2021 | California’s state NIL policy likely goes into effect
November, 2021 | NCAA Board of Governors to hold constitutional convention
Legal Updates
Johnson v. NCAA will move forward after the Eastern District of Pennsylvania DENIES the NCAA’s motion to dismiss
In a case that asserts student athletes are employees, the ED of Pennsylvania has denied the NCAA’s motion to dismiss the suit- which alleges that member institutions are violating the Fair Labor Standards Act (FLSA). The plaintiffs are student athletes from Villanova, Fordham, Lafayette, Cornell and Sacred Heart.
To read the full 30-page order, click HERE. Click the tweet below to read Boise State’s Sam C. Ehrlich’s thread breaking down the order and what it means moving forward:
Justice Kavanaugh’s concurring opinion in Alston is referenced in Brian Bowen v. Adidas
A federal judge in Brian Bowen v. Adidas cited Kavanaugh’s concurring opinion from Alston, stating that it: “[A]dvanced the national debate regarding amateurism in college sports and underscored questions that the NCAA’s remaining rules related to compensation raise under anti-trust laws, it also emphasized the narrow scope of the case.”
FOR ATHLETES
Examples of Success Last Week
Alabama QB Bryce Young is launching an NFT on August 31. There will be 3,626 NFTs for sale. The 10 people who own the highest quantity of the NFTs at the date of each gifting will receive exclusive experiences and items (per Darren Heitner).
Six members of the Ohio State Football Team will receive rides for the 2021-22 season. Haskell Garrett, Zach Harrison, C.J. Stroud, Chris Olave, Miyan Williams and Teradja Mitchell are partnering with Coughlin Chevrolet in Pataskla, Ohio. All six student athletes will take part in toy drives, fund raisers, and more (per Justin Holbrock).
University of Virginia business Professor Kim Whitler is writing a book for student athletes about how to navigate the NIL space. Available in the spring, the book will walk UVA’s 750 student-athletes through four steps: one, setting a vision/goals; two, designing your brand; three, activating your brand; and four, monetizing your brand.
Tip of the Week: NFTs and other forms of art can be a nice venture to further your NIL brand
When NIL policy was first being discussed, a group of student athletes that were thought of almost immediately were artists. Singers, musicians, and more were under specific rules about how they could publicize their work (prior to July 1, 2021) that had nothing to do with the sports they competed in. With the first wave of NIL deals over as we approach two months post 7/1, many student athletes are now trying to cultivate their brands in the creative spaces. Alabama’s Bryce Young is working with a local artist to develop his own NFT, and we’ve already seen deals for other stars like Luke Garza and Desmond Ritter. OSC has documented several forms of expression in recent weeks, including painting, singing, and clothing design (too many to cite). NIL is more than social media posts and signing autographs- it allows student athletes to take their passions and use them to make money off their hard earned work. And with art, collaboration and partnerships form a natural synergy, which is perfect in this emerging space.
FOR COLLEGE ADMINS
Notes for the Week
Appalachian State became the first Group of 5 school to partner with The Brandr Group (TBG). TBG has recently announced partnerships with Alabama, UNC, Ohio State, Texas, Indiana and Michigan State since collegiate NIL rules changed on July 1.
Georgia Tech MBB Coach Josh Pastner: "I actually think the Alston case decision by the Supreme Court is actually more impactful than the possibilities of NIL. [...] You have to be willing to adapt and change and be flexible in this day and age. Otherwise you're gonna get left behind, you can sit and complain and, but the train has left the station on a lot of things and like the transfer portal, I mean, you can complain about it, but it's gone. I mean, that's how it is moving forward." Full interview with Georgia State’s Rob Lanier and AthleticDirectorU.
Kentucky’s John Thelin for Inside Higher Ed: “Where are the Presidents” - as there's been a noticeable lack of public commentary from the leadership group on super high-profile recent developments in college athletics like the Alston case, NIL & financial challenges. “The chaos of the commercial model for NCAA Division I sports will be increasing in the coming year. Most likely those programs that are struggling financially will face increased problems of reconciling intercollegiate athletics with institutional mission and finances with new definitions of the amateur student athlete. Now is the time for college and university presidents to join the public forum.”
UCLA announced Westwood Ascent- a comprehensive Name, Image and Likeness (NIL) program designed to support the school's student-athletes to build their personal brand and maximize their NIL opportunities.
Tip of the Week: Understand the line of improper inducement
While the reports about Memphis’ potential misconduct are inconclusive, the facts themselves can provide some guidance into what the “line” is between impermissible inducement in recruiting and otherwise allowable conduct. Schools need to recognize that the best approach in the current NIL landscape is to remain hands off when hearing of any type of NIL offer. This is exponentially more important when meeting with prospective student athletes, whom the NCAA’s Interim NIL Policy explicitly seeks to protect. While the exact rules remain to be seen (and interpreted), it is generally accepted that coaches can tell PSAs that current student athletes are making NIL deals. But coaches should not be promising those types of deals in perpetuity/the future, they should not be naming the exact companies that are involved nor any financial information they might have been privy to, and they should not try to broker any deals themselves. As of now, the spectrum perhaps starts with BYU’s deal with Bylt (which has not had any issue with the NCAA) and the potential actions of Memphis (alleged brokering of a deal with Bates, FedEx). But there is still more to be interpreted and these lines will become more defined soon enough.
FOR AGENCIES
Takeaways and Successes Last Week
Fresno St basketball twins Hanna and Haley Cavinder have signed with ESM for NIL representation. The two have more than 4M followers across social media. The twins join premier QBs Sam Howell and JT Daniels. Darren Heitner for legal (per Darren Rovell).
Eight Texas student athletes across three sports have signed NIL deals with CoachTube, a platform for prospective athletes to learn from some of the most notable names in coaching. CEO Wade Floyd is a University of Texas graduate and has already signed stars from other major college sports programs such as Clemson, Oklahoma, Georgia, and Miami (per LonghornsCountry.com).
Tip of the Week: Student athletes seem to value university loyalty
Perhaps due to a variety of reasons (geography, loyalty, rivalry, trust), it appears more and more SAs are opting to stick with local NIL agents, particularly those who have alma mater status with the schools they compete for. This has already been seen in Florida, Texas and several Big Ten schools. A major reason might be the day to day needs of the client. Consider how pro agents work- they take high caliber athletes and prepare them to play at the national/international levels under the brightest of lights. Those agents don’t exactly need to know where the best sandwich place is in Tuscaloosa or which mechanic in Ann Arbour to use if your car breaks down. Their clients are thinking national brands for sponsorship, not mom-and-pop stores around the corner from campus. But NIL reps, particularly for student athletes that are not a projected lottery pick or have 5 million followers on Tik Tok, need to think a bit differently. They have to know the culture at their client’s school. These NIL agents can’t fake their client’s connection with the college town- they either have it or they don’t. So as agents, find the regions/base that makes sense for you. Consumers can see right through SAs faking genuineness, so find the right partnerships and commit to being the face of these American towns.
Have you checked out OSC’s website?
Head to www.OptimumSportsConsulting.com to find important resources and features relating to all things NIL. These resources include State by State Resources for Admins, Agents and Athletes, including our initial “OSC Summaries” for over a dozen states coming soon.
More to come too, including links to helpful state information- including agency laws and information about school policies, as well as seminar/congressional notes, worksheets, and much more!