NIL Newsletter #2 | Thursday, July 15, 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.
Recapping NIL This Week
More than half of all states in the US have official NIL policies.
Missouri became the 27th state to enact NIL legislation or an executive order- the policy goes into effect on August 28th. See the longer breakdown at the end of this email.
Arizona and Connecticut’s policies will go into effect in the coming months as well. FBS football kicks off in late-August.
Former NCAA athletes want previous NIL penalties overturned.
Former Ohio State QB Terrelle Pryor wants vacated 2010 wins reinstated under new NIL policies adopted by the NCAA. Pryor and four teammates - DeVier Posey, Solomon Thomas, Mike Adams and Dan Herron - were suspended by the NCAA for the first five games of the 2011 season after trading autographs and memorabilia for cash and free tattoos at a tattoo parlor in Columbus.
"Although this could never undo what we and our families endured for breaking rules that shouldn't have existed in the first place, we believe reinstating and acknowledging the accomplishments of ourselves and our teammates would be a huge step in the right direction," Pryor said.
Reggie Bush is set to create a documentary film on losing the Heisman Trophy. Bush was banned by the NCAA in 2010 for receiving impermissible benefits from a marketing agency while he was a student athlete. Allegations arose that Bush and his family received nearly $300,000 in gifts. Bush released a statement on July 1st calling for his Heisman Trophy to be returned following new NIL policies.
“After all these years I’m finally ready to tell my story, I hope this can help drive change with the next generation of student athletes,” Bush said. “We’re making some progress, but there’s still a long way to go.”
Deep Dive: Barstool Athlete Carli Baldwin’s TikTok Gives Insights Into the New Marketing Agency
Baldwin, a New Mexico State swimmer, gave insight into Barstool Founder Dave Portnoy’s communications with athletes and how the agency is being structured.
Written by Austin Meo
On Monday, New Mexico State swimmer Carli Baldwin released a TikTok video that detailed her experience with the newly formed Barstool Athletes program.
With screenshots of an intro email sent to her by Portnoy shortly after being accepted into the program, Baldwin explained several key provisions of the Barstool Athletes structure. She began by saying that over 100,000 student athletes have applied to the program, and that there was a private call scheduled for Barstool Athletes the next day that she would not give details on.
Baldwin then says that Portnoy believes student athletes should, “not be in any exclusive brand deals.” In the email, Portnoy writes, “This wasn’t a grand scheme of ours to make money off college athletes. This developed organically like everything we do. Or goal is to augment or help all of you guys with marketing yourselves…”
The next portion of the video shows an email from the Barstool Athletes Store, where athletes could receive merchandise that was 100% off and included a free shipping discount. Baldwin added that no one asked for her credit card information and that the merchandise was genuinely free.
Under the NCAA’s Interim Name, Image and Likeness Policy, student athletes are prohibited from entering into agreements without quid pro quo- meaning that there must be some form of consideration in the deal on both sides. For example, a student athlete can not simply just receive free apparel from a store. They must, in some way, do something for the apparel company- such as posting on their social media or doing a TV commercial. The NCAA does not define what type of consideration is “enough,” but the goal is to ultimately protect companies and student athletes.
The concern when Barstool Athletes first started was what athletes were receiving upon “being sponsored” by the media giant. While most athletes quickly put “Barstool Athlete” in their Instagram bios, it was unclear what they were actually receiving in return. Baldwin cleared this up by explaining that Barstool Athletes is in fact a marketing agency, rather than the company “sponsoring” students athletes like a car dealership or shoe company would. Even if Barstool was not grouped as a professional representation group and instead as an ordinary company sponsoring student athletes, the free merchandise in exchange for social media publicity would likely satisfy the NCAA’s interim policy.
Baldwin concluded the video by asserting that Barstool Athletes is NOT a sponsorship but rather a marketing agency. She added that Dave is working with other brands to work with student athletes in the program, but Barstool itself is not paying anyone to represent them.
Barstool has been facing criticism because of its gambling affiliation under Penn National Gaming. In January of 2020, Penn National paid $163 million to acquire 36% of Barstool Sports. Now, as Barstool Athletes continues to recruit more student athletes, questions as to whether working with Barstool violates state NIL laws are beginning to swirl. Several states, including Alabama, Illinois and Louisiana, ban student athletes from endorsing casino/gambling companies (many states also have bans on alcohol and drug-related businesses, and some states allow institutions to set their own bans as well).
Arguments have poured in on both sides as to whether or not student athletes might face repercussions from working with Barstool Athletes. Some sports lawyers have pointed to the University of Colorado’s partnership with PointsBet as its official sports gambling provider as evidence that working with gambling affiliated companies is nothing new in the NCAA. Colorado’s NIL law, interestingly, does not ban working with gambling/casino companies but does contain a catch-all content clause that can be left up to interpretation.
Regardless, athletes interested or directly involved in any professional representation should discuss with their athletics compliance offices before entering into any deals.
ICYMI: Missouri Becomes 27th State to Pass NIL Legislation
Governor Mike Parson signed HB 297 Section 173.280 into law on Tuesday, making Missouri the 27th state to have a formal NIL law.
Missouri’s NIL law, a part of an education bill, touches on a variety of hot-button areas including licensing restrictions, financial education and professional representation.
The law also has an important impact on the SEC and the Power-5 conferences of the NCAA. With the University of Missouri Tigers now under a formal NIL state policy, all 14 SEC schools are officially subject to state NIL laws. No other FBS conference is completely under state NIL policies.
Missouri Athletic Director Jim Sterk released the following statement:
“Today’s signing of Missouri’s NIL bill ensures our student athletes will continue to have opportunities to cultivate and benefits from their personal brands. On behalf of all our student athletes, I would like to express our gratitude to Governor Parson, Senators Caleb Rowden, Greg Razer and Holly Rehder, Representatives Kurtis Gregory, Wes Rogers, Nick Schroer, and Wayne Wallingford, and many other elected officials who spoke in support of and voted for the NIL bill.
Mizzou Athletics looks forward to continuing to educate our student athletes on the NIL process and providing them with the resources necessary to maximize their brands through our TradeMark program.
Optimum Sports Consulting broke down the policy in the below graphic. You can also check it out on Instagram and Twitter, where we give daily updates and tips for student athletes, administrators and agencies.