October 22, 2021

Name, Image and Likeness Scouting Report, Week 6: Midseason Update — Five NIL Trends We’re Watching

The Iron Bowl is the name given to the annual Alabama–Auburn football rivalry: a key late-season matchup between the Auburn University Tigers and University of Alabama Crimson Tide, both charter members of the Southeastern Conference. The 86th edition of the Iron Bowl will take place November 27 at Jordan–Hare Stadium in Auburn, Alabama home of the Auburn Tigers and will be televised nationally on CBS. While there will be, as always, exciting action on the field between these two storied programs, as NIL aficionados, what we will be watching surrounding the game (among other trends below) is the battle between two Iron Bowl rivals — a quarterback and opposing cornerback — for name, image and likeness (NIL) supremacy.

1. Notable NIL Deals Inform and Amuse

Many of you have been following your favorite college team on the field; our Scouting Report has been following NIL deals off the field. They range from important cornerstones to the hilarious.

King Kong vs. Godzilla. It’s important to look at the example set by the two players in the State of Alabama – junior quarterback Bo Nix of Auburn and freshman cornerback “Kool-Aid” McKinstry of Alabama. Nix has entered into endorsement deals with Bojangles® restaurants and Milo’s brand tea. McKinstry, whose given name is Ga’Quincy, has long referred to himself as “Kool-Aid,” a childhood nickname reportedly given to him by his grandmother. He scored perhaps the greatest NIL deal of the season with Kool-Aid brand drink before he ever played a down for Alabama. Depending upon your preference, how about some Milo’s Tea or Kool-Aid beverages at the Iron Bowl tailgate party? Companies are hoping their product tie in with a player sways your thinking for your preferred beverage.

Charitable Tie-Ins. Public affiliation is not just limited to promoting a company’s products or services. While that is typically the underlying point of most endorsement deals, both companies and athletes alike seek to obtain a two-point conversion by using sponsorships, endorsements and other promotional deals to fund and/or highlight their charitable activities with respect to the causes to which they devote their resources and attention.

The Kentucky Wildcats are enjoying a good season this year in part due to the efforts of transfer wide receiver Wan’Dale Robinson — who has been Kentucky's best offensive player this season. His success has permitted him to score off the field as well, including an NIL deal with the local Paul Miller Ford dealership, the first of its kind between a University of Kentucky student-athlete and an automotive company. With guidance from his sports management company the Virtus Brand, Wan’Dale is structuring his NIL deals so that a portion of all of the NIL deals he obtains goes to the Wanda J. Robinson Foundation that assists children with incarcerated parents. This charitable tie-in highlights both the new NCAA-sanctioned assistance student athletes may now receive from professional advisors — such as marketing companies, lawyers and agents — in structuring their NIL deals, as well as an additional positive public affiliation Wan’Dale’s marketing partners like Paul Miller Ford receive when doing promotional deals with him.

Women Are a Center of Focus. Fall is also college volleyball season, and NCAA women athletes are grabbing their share of NIL deals, as well. Some of those ads have already courted controversy for highlighting athletes’ sex appeal rather than their athletic skills.1 In one ad, Southern Methodist University volleyball  player Alex Glover wears a swimsuit and holds a blue raspberry lollipop in an Instagram ad informing consumers how they can win a box of SmartSweets brand candy. And in another, as a prelude to the upcoming basketball season, Fresno State twins Haley and Hanna Cavinder stood in Times Square, donning sports bras, with a dollar bill in one hand — symbolizing their first NIL pay-day — and a Six Star Pro Nutrition supplement in the other, informing their followers that Six Star supports “athlete’s choice when it comes to both active nutrition and overall lifestyle.” The Cavinders are poised to cash in on massive social media followings they built before the NIL changes, and they have already been prolific; their first cross-country trip to New York City was not wasted, as Times Square also served as the backdrop for their campaign for Boost Mobile. According to a Fresno State associate athletic director, "They are the perfect representation of the modern-day collegiate athlete."2 Still, differences in the treatment of men and women athletes has been the source of public debate for decades, and how these athletes are portrayed in NIL opportunities seems poised to continue that trend.

Meanwhile, legendary investor Warren Buffett (the “Oracle of Omaha”) has spearheaded higher-end promotional opportunities with his favorite collegiate volleyball player, two-time All American Lexi Sun of the University of Nebraska. Sun serves as a brand ambassador for Buffett’s Borsheims jeweler’s “Lexi Sun Edit,” a selection of the athlete’s favorite pieces from the jeweler — primarily simple, yellow gold rings, necklaces and everyday bracelets and earrings, along with a mix of bold watches by Movado. According to Sun, “When I’m not on the court, I am always wearing simple, dainty, and handpicked gold jewelry. I’m definitely a gold gal.”   

Looking For Some Additional Fun? Sometimes it’s amusing to compare the serious promotions with the humorous. Check out the Arby’s “Running Backs’” campaign. It features any Division I college football running back that signs up to say “Tonight, I’m getting Arby’s!” We’re not sure this NIL deal will make us rush out and join them at Arby’s tonight, but the campaign is fun to watch. Will the Burger King counter and reach out to Division II and III athletes? Time will tell.

2. Early NIL Deals Favor Cars, Food, Fashion, Health & Wellness Categories

NIL deals with college athletes endorsing food, fashion, health and wellness products have been mentioned above. But car deals are worth special attention because more than any other type of deal, they are the poster child for a litany of prior booster mischief and NCAA sanctions. Next to under-the-table cash payments, providing a sweet ride to a college athlete recruit or proven star player has been the fastest route to NCAA violations.3 The proliferation of new NIL car deals for student athletes is perhaps the most vivid evidence that “the rules have changed. There is no wrong anymore.”4 Today’s car deals puts student athletes in the driver’s seat of a free car in return for some potentially minimal form of association as a “brand ambassador” for a car dealership — often nothing more than just standing in a picture in the front of the dealership’s show room.  For two current examples, just look at current deals approved by The Ohio State University and University of Oklahoma.

In Columbus, six Ohio State football players have received either a car or truck from Coughlin Chevy. The dealership is calling the partnership the "Coughlin Drive Series. On the road, in the community and on the field!" The press release added: "This is more than just a car partnership deal! Throughout the season the guys will participate in Toy Drives, Fund raisers and other community outreach! It’s a partnership WITH a purpose!"5

In Norman, Oklahoma Sooner quarterback Spencer Rattler — a preseason Heisman candidate who has since been benched — drives to practice (or class) in either of two vehicles provided to him by a local Dodge dealer: a 2021 Ram TRX or a  2021 Widebody Charger Scat Pack. According to the dealer’s Twitter post, “Being QB1 for one of the best football programs in the country is hard work but all the hard work and dedication does not go unnoticed. Fowler Automotive wanted to find a way to keep our boy Spencer Rattler comfortable, when he is driving to and from practice, and even though there is only one Spencer, having just one car wasn’t going to be enough, so we went big with two vehicles.” 

Yes, Year One on the NIL playing field is a little “messy,” but it certainly doesn’t look like prior years.

3. The NIL Economy Yields New Businesses to Partner Athletes With Brands

Athlete agents have been an integral part of professional sports for years. But that agency marketplace was limited to a degree by the number of professional teams and athletes. Now, with the addition of over 500,000 college athletes to the potential pool of clients due to the NCAA rules change allowing for use of professional services providers for assistance in NIL activities, it is not surprising that the market for NIL professional services for college athletes is exploding. What is surprising is the direction that growth is taking — moving away from the traditional agent/athlete relationship to a web-based digital marketplace that connects athletes with local, aspiring and national brand partners through an easy-to-use matching system like online dating apps. In many cases across large and small institutions, these platforms are in-house programs that have been created in partnership with the student-athletes’ colleges and universities.6 Additionally, in many instances, these new businesses are run by former college athletes who support compliance with college athletic department policies and look for creative ways to structure NIL deals (see the example of Wan’Dale Robinson above). These business ventures are directed at student athletes competing in conferences both large and small. Two examples are worth noting.

One such new venture is “98Strong” which derives its name from the fact that more than 98% of NCAA athletes do not “go pro.” Founded by two former Harvard and George Washington water polo athletes, the focus is on athletes who can earn small, yet significant and consistent payments for brand sponsorship. A similar new entrant is “Opendorse,” cofounded by two former University of Nebraska alumni in 2012 to support professional athletes, which now serves college teams, athletic departments and conferences with support for their student-athletes’ NIL activities. Athletic departments at Nebraska, Texas, LSU and others work with Opendorse to educate their student athletes on how to use social media to build their personal brand, as well as to analyze each athlete’s social media accounts to help find areas for improvement. In addition, Opendorse helps athletes monetize their NIL by introducing them to businesses interested in partnering with student athletes.

4. College-Wide and Team-Specific NIL Deals

While the focus of headline-grabbing NIL deals has been on individual athletes, the new NIL regime has also allowed for college-wide and team-specific deals. In a college-wide deal, an institution enters into a licensing agreement with a company that is made available to some or all of the institution’s athletes. Similarly, in a team-specific deal, a company makes a general offer to a specific team of an institution so that any student-athlete on that team can elect to participate in an NIL deal with the company. These deals are favorable because any applicable electing student-athlete can participate and receive NIL compensation, and they also provide an avenue for an institution granting a trademark license and other rights to the sponsoring company to use the institution’s name, logo and other assets, which in an athlete-only deal requires the company to obtain a separate license with the institution for such use or rights.

Brigham Young University has a team-specific deal for its football team with protein bar manufacturer Built Bar. In this unique deal, the focus is not on the star players, but on the walk-on players. The brand will pay the tuition of every walk-on athlete and will also offer a brand ambassador position to every other player on the team for up to $1,000 per player.7 In all, 123 players, of whom 36 are walk-ons, will have the opportunity to participate in this program. Players who agree to this deal will wear Built Bar branding on their practice helmets and participate in company events. Walk-ons will also do additional social media posts and other promotions for the company.

Institutional involvement in these deals are not without issues and restrictions, both from legislative and best practices standpoints. In most states, enabling NIL legislation prohibits an institution from paying an athlete for use of the athlete’s NIL,8 and many others also prohibit an institution from providing professional representation or otherwise being involved in the specifics of student’s NIL activities.9

5. NIL Influences Facilities Planning Changes

For years, major college athletic programs have been engaged in a recruiting arms race to provide prospective and current athletes with the best weight rooms, meal programs, locker rooms and other tangible showcased facilities. Now, that race is entering a new phase as schools work to leverage their facilities to assist student athletes to develop “their brands.” Case in point: Clemson University.

In July, Clemson announced plans to invest in facilities to create a “Student-Athlete Branding Institute” on the school’s South Carolina campus.10 The Institute, to be housed in the campus football facility opened in 2015, will be designed to facilitate social media content creation by dedicating spaces to help students develop their brand, such as studios for the production of Instagram, YouTube, podcasts, virtual interviews and other “front facing” social media messaging to consumers. 

The Clemson example highlights the movement to create similar student union-type facilities for athletes or retrofitting existing facilities to incorporate the type of technology, graphics and other features necessary to support NIL content creation. Other schools are taking notice. For example, the University of North Carolina at Chapel Hill has created an “Instagramable” spot for its athletes with a background of Jordan sneakers. As athletic departments engage in strategic planning for the future,11 we expect NIL considerations to merit serious consideration in facilities planning.

We believe these trends from a wild first half of the fall collegiate sports season set the stage for further change in the second half. One thing is certain — there’s a lot to unpack in Year 1 of the NIL revolution, and we will continue to do our best to add to your understanding. Join us in the upcoming weeks as we move the ball forward and highlight many of the practical legal strategies and implications of structuring NIL deals with college athletes.

  1. https://www.washingtonpost.com/sports/2021/08/22/nil-deals-female-college-athletes/ (“Brands are taking notice of female athletes. Now let’s move beyond their sex appeal”).
  2. https://www.msn.com/en-us/sports/wnba/who-are-the-cavinder-twins-heres-how-they-got-to-fresno-state-became-tiktok-sensations/ar-AALGg8E
  3. https://www.bannersociety.com/2019/12/17/21023318/cars-college-football-recruiting
  4. https://theathletic.com/news/tcu-coach-gary-patterson-sec-schools-promising-players-compensation-to-transfer/isgloiNuv1em/
  5. https://247sports.com/college/ohio-state/Article/Car-Wars-Six-Buckeyes-partner-with-Coughlin-Chevrolet-will-receive-cars-trucks-Chris-Olave-CJ-Stroud-Teradja-Mitchell-Zach-Harrison-Miyan-Williams-Haskell-Garrett-169673240/. There is a bit of a trick when it comes to the new cars though. They’re only leased to the players through the end of the 2021 season, though if some return for the 2022 season, they can extend their deal with the dealership to potentially get another lease. https://saturdaytradition.com/ohio-state-football/multiple-ohio-state-football-players-receive-cars-in-new-nil-deal/
  6. https://ohiostatebuckeyes.com/the-platform/ and https://smumustangs.com/news/2021/6/10/equestrian-bold-big-opportunities-live-in-dallas.aspx
  7. https://byucougars.com/story/football/1297331/byu-football-touts-groundbreaking-nil-agreements-built-brands
  8. E.g., Cal. Educ. Code § 67456(b)
  9. E.g., Okla. Stat. §70-820.23(C)
  10. https://www.tigernet.com/clemson-football/update/clemson-to-build-student-athlete-branding-institute-in-response-to-nil-changes-38234
  11. https://www.vanderbilt.edu/athletics-strategic-plan/

The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.

Related Industries

The Faegre Drinker Biddle & Reath LLP website uses cookies to make your browsing experience as useful as possible. In order to have the full site experience, keep cookies enabled on your web browser. By browsing our site with cookies enabled, you are agreeing to their use. Review Faegre Drinker Biddle & Reath LLP's cookies information for more details.