NCAA NIL & Supplement Sponsorships

YOU ARE RESPONSIBLE FOR WHAT YOU PUT IN YOUR BODY. With NCAA NIL in full speed, many athletes are seeking sponsorship opportunities with supplement companies and vice versa. I advise the collegiate athletes I represent to do their due diligence with my assistance to find out exactly what substances and ingredients are contained in a product and we go over which substances are banned by the NCAA. Especially with energy drinks.

I err on the side of caution and advise that my athletes clear any supplement with the NCAA before using. 

The NCAA explains on their website, “Many nutritional/dietary supplements contain NCAA banned substances. Impure supplements may lead to a positive NCAA drug test. The use of supplements is at the student-athlete’s own risk.”

I use the example of the NFL which publishes a list of banned substances and go even further to issue a list of banned companies/brands/retailers and manufacturers their players are prohibited from using or signing sponsorship or endorsement deals with. The reason is that these companies/brands/retailers sell some products that contain a banned substance. 

You will be shocked to see some of the NFL banned companies in the link below. Some of your popular companies such as Vitamin Shoppe, Gaspari Nutrition, Nature’s Bounty, Vitamin World, Bodybuilding.com, and GNC to name a few. Full link below https://nflpaweb.blob.core.windows.net/website/2020-NFL_NFLPA-Banned-Companies-Final.pdf

What Happened to Gabby?

Gabby Petito and boyfriend Brian Laundrie: Why hasn’t he been arrested is the big question I’ve been hearing. While he is a person of interest, presumably having been the last person to see her, he is not yet a named suspect. He has the 5th amendment constitutional right to remain silent, suspect or not. 

Many people presume that because a person remains silent, they have something to hide. This may be the case but it may be because he has a very good defense attorney who has advised Laundrie to remain silent for now until his client’s story is hammered out and a defense strategy can be developed. The mere fact that Petito has disappeared does not arise to a crime; she is deemed missing person status at this point, without any evidence whatsoever of a crime being committed. 

Human decency aspect says hey he needs to speak up and help law enforcement find at least her last known location. However, this is law and constitution and human decency sometimes has no place unfortunately. “Whatever you say can and will be used against you in a court of law” is not just from the TV show Law & Order. Criminal defense attorneys err on the side of caution in advising their clients to remain silent until they are convinced beyond a reasonable doubt their client is innocent.  

Several different scenarios likely occurred 1) Petito wanted to go missing and Laundrie is honoring her wish 2) A terrible accident occurred, such as a fall, heat stroke, drugs 3) A terrible crime occurred and Laundrie is buying his time and remaining silent at the advice of his attorney Bertolino. There is a prior incident of a domestic dispute just a few weeks ago. 

My guess is something sinister occurred. Why wait ten days before reporting her missing? If Laundrie truly had no involvement in her disappearance and an alibi can be established, his lawyer likely would have allowed him to make a statement by now. I predict an arrest will be made soon as search and rescue teams descend and clues and evidence may come to the surface. #trending #lawyer #criminallaw #law  

The Replacements 2?

You’ve Been Punked! ESPN that is. IMG and Bishop Sycamore. Epic marketing failure or marketing genius depending how you look at the situation. Perhaps a movie deal in the works? Because let’s be real. Everyone is talking about Bishop Sycamore. Fake school or not. Rumor is some of the kids on the team are 20 years old. And fresh out of jail. According to sources the team could not fly from Ohio to Florida because of outstanding arrest warrants on several staff and players including an active arrest warrant on Coach Roy Johnson for domestic violence. Although not confirmed, word is Johnson was also investigated by the U.S. Secret Service for financial fraud related to his role in the creation of COF Academy, the “school” that was shut down previously and replaced by Sycamore. The movie The Replacements comes to mind. 

Paragon Marketing has its tail between its legs. It arranged the game to be aired on ESPN. They should be ashamed and have admitted they fell short here. No one did their due diligence to confirm the veracity of Bishop Sycamore’s representation to ESPN of their players’ skills and stats in the matchup against IMG. I guess the Ohio Department of Education never got wind that Sycamore was playing IMG on ESPN? If they had, I assume they would have stepped in to further investigate. 

Most importantly, Bishop Sycamore’s  Coach Johnson admitted his players had played in two games just prior to the IMG game, which in my opinion put his players at high risk of injury and his actions can be deemed complete reckless disregard to his athletes’ well-being. ESPN admitted they would not have aired the game had they known that Sycamore had just played on the Friday before the Sunday game. 

If Paragon Marketing or ESPN had performed their due diligence they would have found that head coach Sycamore Johnson was investigated for fraud relating to the creation of this alleged charter school, was involved in a domestic violence court case, and had defaulted on several loans. Basically he has a very shady past. Johnson promised ESPN his team had D1 prospects. The Sycamore Athletic Director defended their position telling ESPN to show up on signing day and they would see D1 signees. Show up where? The address listed on Max Preps takes you to a housing duplex and library. Forget about a website. It’s down. And who the heck is/was Bishop Sycamore? Apparently he is a fictional bishop. 

Can’t wait for the sequel. The Replacements 2 perhaps?

 

SIMONE BILES: GOLD MENTAL OVER GOLD MEDAL

Simone Biles had the proverbial weight on her shoulders heading into Tokyo. This weight looking very much like 1.2 pounds of Olympic gold. In case you didn’t know, an Olympic gold medal weighs about 1.2 pounds. 

Approaching this Olympic Games I can only imagine the mental and physical stress Simone experienced, along with many other athletes. It is important to point out that  Simone was in the spotlight everywhere you looked on social media, expectations high and unforgiving. 

Each athlete’s body and mind has a breaking point and every athlete copes in different ways. As a former Division 1 athlete in the hurdles, I can only speak for myself, but I suffered many mental breakdowns, in most cases exacerbated by physical injuries. Some days I simply forgot how too hurdle and could not even make it out of the blocks to the first hurdle with the correct steps.   Frustrated and exhausted, my body and mind simply froze. My body and mind would not cooperate and absolute fear took over. Call it what you want-performance anxiety, over-training syndrome, mental and physical stress-it is a real thing and can hit at any time. 

In addition to the normal stresses of an athlete, this year, every athlete had to deal with COVID, training through COVID, dealing with the delay of the Olympics for a year, wondering if the Olympics would be cancelled again. Specifically to gymnasts and Simone Biles, added stressors heading into Tokyo included the decertification, breakdown and bankruptcy of USA Gymnastics following the exposure of sexual predator team physician Larry Nassar, who sexually abused Simone and many other gymnasts. Thankfully he was convicted and will rot in prison for the rest of his pathetic life. While I am not a mental health care provider, there is no doubt in my mind that Simone and many other athletes subjected to Nassar’s abuse suffer PTSD, and many have not received the treatment that they need. To add to the pile of personal pressures on Simone, she certainly had to be affected by the June murder trial of her brother, who was subsequently acquitted. If you are not already stressed out by reading this up to this point, Simone revealed that her aunt passed away during the Olympics. This sure is a lot for one 4’8 human being deal with. All the while she was expected to be the best in the world. 

Simone said in her Facebook Watch docuseries “Simone vs Herself” that fear motivates her. It motivated her until it didn’t and her “twisties” took over motivating her decision to withdraw from the games. You never know when fear will take over. It’s easy to sit back and judge and say Simone gave up on herself, her team and her country, that she’s selfish, that she choked. What is not easy, is to break down in front of the world with all eyes on you, scrutinizing you, while on the biggest stage on Earth, to break down when you’re on the brink of accomplishing what no other gymnast has accomplished, to feel that you let yourself down, your team down, and your country down. To put a big smile on your face and try to prove to everyone that that it is ok to not be ok. 

 Simon did not choose herself over her team. She not only withdrew from the team finals but took herself out of the individual all around competition, a title she was in Tokyo to defend. She gave up her chance to win another all around gold. She gave up her chance to carve herself a spot in the record books. She chose her sanity and mental health over potentially deepening her mental crisis and injuring herself physically and permanently.   

Did Simone’s sponsors drop her after her withdrawal? No. Her sponsors applauded her. They did not give up on her. Simone’s sponsor Athleta is the forefront and epitome of supporting women athletes and their well-being. “We stand by Simone and support her well-being both in and out of competition," Athleta Chief Brand Officer Kyle Andrew said in a statement. "Being the best also means knowing how to take care of yourself. We are inspired by her leadership today and are behind her every step of the way." 

In my opinion, there is a reason Simone left Nike for Athleta, as did track superstar Allyson Felix. To have a brand believe in you and support you both physically and mentally is refreshing and encouraging. I hope to see more brands and sponsors follow Athleta’s lead, especially when it comes to female athletes who face a unique set of circumstances including gender equality, sexism, body image issues, postpartum depression, and child care issues, to name a few. In the new era of NIL, a sponsor’s role will become very important in promoting and supporting the well-being of the young female athletes. 

I hope people will step back and consider what an athlete might be going through before they are so quick to offer judgment. 

Simone chose Gold Mental over Gold Medal and we are proud of her.  

New York State Lags Behind in NIL Legislation

 I am receiving a lot of questions re what is the NIL law in New York State. The answer is: New York State DOES NOT currently have its own NIL laws in place governing collegiate athletes. Some  states like Florida, Georgia and

Alabama  have already passed NIL laws and legislation outlining what athletes can and cannot do and setting forth requirements for agents, player reps and attorneys.

The NCAA has its interim NIL law in place and recommends that one refer to state guidelines for further guidance. But as stated, the conundrum we have here in New York State is that we do not have any state guidelines in place to “guide”’us, so it is the wild wild west (or east) in New York for colleges, athletes and agents/attorneys. 

It is highly recommended that colleges implement their own NIL rules and work closely with athletes to inform them of what is and is not permissible, to protect themselves and their athletes. Compliance is key. It is strongly recommended that athletes consult with an agent or attorney before entering into any third-party deals. Athletes must know what is and what is not permissible. For example, some colleges prohibit using campus grounds/facilities for photo/video NIL activities or require athletes to obtain prior written authorization before engaging in such activities. Athletes also have to be very careful about potential exposure to trademark and copyright infringements for example if they promote a third-party brand using a photo they do not own the rights to, or post a photo that contains their school’s trademarked logo. 

An athlete should rigorously review and investigate the brand/company they are asked to promote for any unsavory reputation or prohibited affiliates (Barstool for example for its gambling association). 

Some colleges have a notice period and athletes must report all NIL activities within a specified time period, sometimes before they even sign a contract with a third-party. Many colleges are using the platform INFLCR to facilitate reporting and tracking and athletes should become familiar with this app. 

NIL activities for international students should be cleared with their respective government agencies to make sure their student visa is not compromised or jeopardized  for engaging in what might be deemed “employment” opportunities.

New York has state income tax. Student-athletes should consult with a qualified financial advisor or CPA re tax consequences arising from their NIL activities. 

Bottom line, do your homework! Ask questions! Know what is allowed and what is prohibited! Know your worth! 

College hunks cashing in on their NIL

 College HUNKS Hauling Junk. Yes, this is a real company which is now partnering up with collegiate athletes. If you’ve been following the exploding NIL deals, Miami QB D’Eriq King just partnered with College Hunks Hauling Junk moving company out of Florida. NCAA NIL era is evolving every day as we see more and more brands partnering up with collegiate athletes. NIL is still new territory open to interpretation. I am most interested in apparel brands competing for athlete partnerships. 

Let us take for example, University of Miami. In 2012, Miami partnered with Adidas in a 12 year deal estimated to be at around $6.55 million a year (although the exact amount has not been confirmed since Miami is a private institution and not required to disclose financial details) which is currently one of the most lucrative apparel deals among collegiate teams. (Nike was the previous partner with Miami and declined to match the Adidas deal). This means, that all U of M athletes are outfitted with Adidas apparel. I have seen their uniforms, especially the track ones, and they are 🔥 

With NIL now opening up the flood gates for athletes to benefit off their NIL, what happens when brands such as Under Armour want to partner with say QB King? Will such a deal be permitted since U of M already has a deal in place with UA competitor Adidas to outfit their athletes? Time shall tell. This determination will also depend on State NIL laws (New York does not have its own NIL laws as of the date of this post). Florida does have its own NIL laws and according to their laws, in pertinent part, a collegiate athlete may not enter into a contract for compensation for NIL if the terms of the contract conflicts with terms of the athlete’s team contract. Let’s break that down. If, for example, the U of M’s contract with Adidas contains terms/language that its athletes may not wear, display, or endorse any other brand during play (on the track, on the field etc), then the individual athlete must only wear Adidas while in play. However, unless the terms of the University’s contract with Adidas states otherwise, there is nothing in the contract language prohibiting an individual athlete from entering into a partnership deal with UA if they only wear and endorse the apparel out of play, and promote on Instagram, Twitter and so forth. I wonder if apparel brands will attempt to tailor the terms of their contracts going forward to include language prohibiting athletes from partnering with competing brands. I do not think this approach will fly very well in this new NIL era. Some universities have been supporting and pushing for NIL laws and therefore likely will not agree to such confining contract language. Importantly, SCHOOLS CANNOT SOLICIT NIL OPPORTUNITIES FOR THEIR ATHLETES! Curious to see how this all plays out. 

NIL: Zero to MIL. A New NCAA Revolution

Zero to millions in NIL benefits. Attorneys & agents aren’t jumping over hurdles to join the NCAA NIL bandwagon quite yet! There remains a lot of legalities and vagueness in the policy as the interim NIL takes effect. Some States have enacted their own NIL laws. Other States are lagging behind, New York being one, having not enacted their own NIL laws and therefore are carefully navigating the legal boundaries of the countrywide NCAA NIL policies. In addition to State NIL laws, colleges and conferences are permitted to develop their own protocols. The States of California and Florida and the collegiate institutions within, for example, have opened the floodgates and paved the way for NIL, having enacted their own specific NIL laws prior to the NCAA. The countrywide NIL policies laid out by the NCAA are not concrete, however, and are still open to lots of discussion and interpretation. 

Does NIL apply to the benefit of high school athletes? While it has been discussed that NIL opportunities may not be used as a recruiting inducement or as a substitute for pay-for-play, NIL

also states that “PROSPECTIVE student-athletes may engage in the same types of NIL opportunities available to current student-athletes under the interim policy without impacting their NCAA eligibility.” Hmmm. For lawyers this may be construed as a legal loophole. Us lawyers are always looking for loopholes. That’s part of our job! According to SI, NCAA’s proposed NIL framework supports recruits in entering NIL agreements as long as those deals are disclosed to colleges before they sign with the school. But where does that leave their remaining amateur eligibility? 

At the high school level, at least in the State of New York, athletes cannot benefit from NIL from wearing their high school jersey. They cannot earn money based on their identity as a high school student-athlete. If they do, they forfeiture their amateur status. BUT what about high school athletes competing with travel teams and non-school sports organizations? Technically they are not competing with or for their high school. Well I did some research since there appeared to be nil (excuse the pun) on the specifics of NIL in NYS. What I saw clearly delineated in the NY NYSPHSAA Bylaws (public schools), in pertinent part,

AMATEUR: A student who represents a school in an interscholastic sport shall be an amateur in that sport…When competing in non-NYSPHSAA sponsored events, an athlete forfeits amateur status in a sport by: Competing for money or other compensation…Receiving an award or prize of monetary value. 

One may ask why can’t high school athletes benefit from NIL? Well one school of thought is that it creates a hostile and uncomfortable “locker room” atmosphere rather than a team environment and will destroy the essence of high school athletics. Another rationale is that high school sports is all about competing for and with the team as one, as opposed for the individual. 

I am betting that some attorneys will be stepping up and challenging some of the “ambiguities” in the language of the bylaws. Take a look at California. High school athletes in California can profit from their NIL with the only restriction being an inability to utilize their high school’s name or marks, according to the California Interscholastic Federation. A CIF spokesperson confirmed this to 247Sports. That means outside of their team, they can benefit from NIL. 

Exciting new landscape and I’m happy to be apart of this evolving process.