NIL Newsletter #6 | Thursday, July 29, 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.
This Thursday’s Newsletter Includes:
Recapping NIL news this week
Deep Dive on Lululemon violating the NCAA’s interim NIL policy
ICYMI: How media access is changing due to NIL deals
Recapping NIL This Week
#1 FB prospect Quinn Ewers might skip his senior year of HS to join Ohio State to profit off his NIL, shining light on high school NIL
Carroll Senior High School QB Quinn Ewers is “leaning” towards skipping his senior year of HS, according to Yahoo Sports’ Pete Thamel. Ewers could then sign NIL deals worth nearly seven figures, which aren’t allowed in Texas for high school players.
“I don’t really know, I don’t have a final decision made quite yet. I’m leaning toward leaving and going up to Ohio, just so I don’t have to deal with UIL stuff and can get comfortable with Ohio and Columbus and start to learn,” Ewers said.
Darren Heitner noted that Texas (where Ewers if from) along with Illinois and Mississippi explicitly prohibit HS NIL deals. The New York Public High School Athletic Association will discuss in October.
Mit Winter tweeted, “[C]onfirmed with the Missouri State High School Activities Association that students at Affiliate Registered schools can enter into NIL deals and they and their school remain eligible to compete against schools that are full members of the MSHSAA.”
Top NBA-bound prospect Mikey Williams, a HS junior, signed with Excel Sports Management this past week. Excel VP Matt Davis told ESPN that Williams, “[W]ill generate millions of dollars… Mikey’s relevance around his peers in the basketball community is off the charts.”
NCAA olympic athletes with eligibility remaining can keep their prize money from the US Olympic and Paralympic Committee
15 olympic medals and over $360,000 in prize money will get to be kept for NCAA athletes with eligibility remaining, according to USA Today’s Steve Berkowitz.
Olympic athletes were allowed to keep their prize money under previous NCAA policies, but this will be the first time that they will be able to benefit from NIL opportunities gained through Olympic exposure.
Reggie Bush will not have his 2005 Heisman Trophy returned
Kyle Bonagura of ESPN is reporting that Bush will not have his Heisman returned, after the NCAA said they will not consider reversing penalties or previously vacated records from past years based on recent changes to name, image and likeness regulations that went into effect this month.
"Although college athletes can now receive benefits from their names, images and likenesses through activities like endorsements and appearances, NCAA rules still do not permit pay-for-play type arrangements. The NCAA infractions process exists to promote fairness in college sports. The rules that govern fair play are voted on, agreed to and expected to be upheld by all NCAA member schools," said a spokesperson for the NCAA.
Deep Dive: Lululemon’s ‘Team Program’ was Shut Down For Violating the NCAA’s Interim NIL Policy
The luxury athletic apparel brand had to change its current program with student athletes to keep them eligible with the NCAA. Thankfully, there was an easy fix.
Written By Austin Meo
Lululemon is an apparel brand that was founded in Vancouver, BC by Chip Wilson. The company began in the yoga apparel space, and over the past two decades has expanded to also sell athletic wear, lifestyle apparel, and accessories. To date, there are nearly 500 Lululemon retail locations globally, along with a thriving online store. The company has continued to expand in the last five years- acquiring Mirror for $500 million and announcing that it plans to double its men’s business by 2024, competing with the behemoths of Nike, Adidas and Under Armour. NIL could not have come at a better time for a growing athletic apparel brand like Lululemon.
In fact, on July 2nd, Lululemon heard from a student athlete publicly on Twitter. Eric Schultz Jr., a 2020 All American wrestler at the University of Nebraska (and coincidentally, a Barstool Athlete), tweeted at the Lululemon Twitter account asking about a possible discount for NCAA athletes.
The “Sweat Collective” is advertised on Lululemon’s website as ‘leaders in sweat in their communities’ and has a link to formally apply online. “We offer special perks and benefits to our members as a thank you for their leadership and commitment to sweat, plus, we connect with members to gather highly valued input on our product to help us build the future of Lululemon.” Under the FAQ portion, the brand does discuss discount codes, which is likely what Schultz was referring to in his tweet. A discount code, under the NCAA’s Interim NIL Policy, wouldn’t inherently be impermissible UNLESS there was no quid pro quo. Meaning, a student athlete could not simply get a discount code or free merchandise without some kind of an exchange- such as a post on social media or a meet-and-greet at a retail location
Fast forward a few weeks after Schultz’s initial inquiry- the University of Oklahoma’s Compliance Office announced that the NCAA has deemed it “impermissible for student athletes to participate in the Lululemon Team Program.” OU additionally clarified that, “The Lululemon Team Program uses the athlete status of a student-athlete as part of the selection criteria without a quid pro quo which is considered preferential treatment, not NIL.”
Unsurprisingly, sports lawyers like Mit Winter and Darren Heitner noted that this was an easy fix for Lululemon. Requiring a student athlete to post on social media about the Sweat Collective, rather than just receiving the free gear and discount code, would clear the whole situation up. And that is exactly what happened a day later.
Dionté Sykes, a wide receiver at Colorado State - Pueblo from Chandler, Arizona, announced on Wednesday morning that he was doing a paid partnership with Lululemon. Since the Fall of 2017, Instagram has identified paid partnerships more clearly for users as governments from around the world began to crack down on influencers and companies blurring the lines of advertisement deals. Sykes will likely be one of many sponsored athletes working with the brand that has nearly 1 million followers on Twitter and 3.7 million on Instagram.
The Lululemon situation turned out to be an easy fix, but it should serve as a reminder for all student athletes (and their respective coaches and compliance officers) that there must be quid pro quo for a deal to be considered permissible under the NCAA’s guidelines. It’s also important to recognize that the line for quid pro quo has not been drawn just yet- no one knows what is “enough” for a student athlete exactly.
This story has similar undertones to the Barstool Athletes saga from several weeks ago too. There, it also appeared student athletes were receiving free merchandise and exposure without any service in return (besides possibly listing the term ‘Barstool Athlete’ in their social media bios). That situation was cleared up by New Mexico State swimmer Carli Baldwin on TikTok, who explained that Barstool was actually an AGENCY rather than a SPONSOR. You can read about the distinction in our Newsletter #2 from a couple of weeks ago. Here, Lululemon likely had no interest in becoming NIL agents, which is why it made sense to establish a proper quid pro quo with its fellow sponsored student athletes.
Expect more companies to make these errors as they roll out their NIL sponsorship plans. Student athletes- work with your institution’s athletic compliance office to make sure basic NCAA rules are being met before signing any type of deal.
ICYMI: The Convergence of NIL and Media Access
While many have applauded recent NIL media deals for athletes like Purdue basketball player Sasha Stefanovic and Texas A&M football players Isaiah Spiller and Demani Richardson, media members are concerned that basic access is being paywalled.
Andrew Wittry, a seasoned college beat reporter, examined a different viewpoint of NIL- how recent NIL media deals for players might be spotlighting the erosion of media access. Over time, Wittry explains throughout his Out of Bounds blog that media members have less direct access to student athletes now than ever before. He claims that student athletes speak less freely and stick to scripts written by their Sports Information Directors (SIDs) now, and actual press conferences with SAs are rare. More importantly though, he discusses the ethics behind paying for media access and if this could potentially better or worsen the current situation.
Journalists are taught and trained not to pay for media access. The Society of Professional Journalists’ (SPJ) Code of Ethics states, “do not pay for access to news.” It also says, “avoid conflicts of interest, real or perceived.”
“It’s a bad idea to be paying people for news or to be a source for news stories,” Andy Schotz, a member of SPJ’s Ethics Committee, told Out of Bounds, “but there are different other relationships that might fit. If you were to have somebody come on as a guest on a talk show, I think it’s pretty common that they would be paid some money for that. If you were to have them speak at a conference and they get an honorarium, that seems normal, too. I think I would just want to know what are they trying to do by having an athlete connected to them and I don’t know the answer.”
The recent deals that provided, or will provide, TexAgs.com and BoilermakersCountry.com with exclusive access raise several questions about media access, ethics and competition.
And while it is important to point out that the media deals are done with affiliated podcasts, make no mistake that the Lafayette Journal & Courier and Houston Chronicle, two large metro newspapers, are indirectly paying for “better” media access.
Coaches, SIDs, athletic departments and student athletes should pay attention to these media deals and see how this might affect messaging from teams. Will these deals allow for SAs to speak more freely since they are contracted away from the school? And how will competition news companies react to “preferred” access for certain SAs?