Student athletes can profit from their brands, but details still scant

Montana flagships instructing student athletes on new NCAA guideline

By: - July 13, 2021 12:44 pm

Fans fill the stands at the University of Montana Washington-Grizzly Stadium for a football game in September 2017. (Provided by Brockton Gnose for the Daily Montanan.)

The door opened this month for student athletes at both of Montana’s flagship campuses to profit from their name, image and likeness, and with it a flood of questions.

How much earning potential might students have?

“The early ones have been anywhere from a $5 social media post to $6,000 per student athlete at the University of Miami,” said Leon Costello, director of athletics at Montana State University in Bozeman. “It’s across the board. We’ll see where it shakes out, but it’s something we don’t quite know yet.

Will the deals affect team dynamics?

Jean Gee, senior associate athletic director at the University of Montana in Missoula, said she worries about the potential for negative consequences. She expects any effects would be minimal, but she said even athletes who play individual sports belong to a team.

“And being part of a team is that you’re all competing together to win, obviously, and to become better, and then you potentially have one student athlete out there that is getting all the media attention, all the local attention, making money off of that,” said Gee, who oversees student affairs and compliance. “That doesn’t feel much like a team anymore to me.”

On June 30, the National Collegiate Athletic Association announced long-awaited interim guidance, effective the following day, for how students in all divisions can benefit from their names, images and likenesses. The NCAA used to prohibit students from profiting from their brands, but as the NCAA’s revenues have grown, so too has pressure to share the windfall with players.

As the clock was ticking on a policy, states took action on their own and passed a variety of laws to support college athletes, and the NCAA noted in a June letter that 10 state laws could take effect this month. In Montana, the 2021 Legislature adopted a state law that allows student athletes to take in earnings, but it doesn’t take effect until 2023.

The NCAA instructions note college athletes who go to school in a state with no NIL law in place “can engage in this type of activity without violating NCAA rules.” But Montana higher education and athletic officials are describing the change as uncharted territory for athletics, and direction from the NCAA is slim.

Students may personally receive compensation from their personas, and Costello noted he’s already taking calls from local and state organizations that are interested in such deals. But Gee noted it’s the first time in her experience working in compliance that a philosophical shift in the NCAA is not represented in the form of a rule, and the lack of firm regulations may create legal land mines for institutions.

“We are working from guidance,” Gee said.

And the guidance isn’t a permanent, national solution, either, she said: “The only thing that we have really done by having this guidance come out from the NCAA, this interim solution, is to make sure that those institutions that don’t have a state law, those student athletes are still able to take advantage of NIL. That’s the only thing we really accounted for, but there still is not going to be consistency at all.”

Missoula PaddleHeads ready to work with student athletes

Taylor Rush said the Missoula PaddleHeads are excited about the opportunity to work with student athletes from the University of Montana since the National Collegiate Athletic Association has opened the door for players to profit from their personas.

“The two real shows in town, sports-wise, are the University of Montana, and for professional sports, it’s us, right?” said Rush, director of marketing and public relations for the minor league baseball franchise. “So there’s a clear correlation that fits there, and as a marketing person, anytime you can add a new medium, especially in a relatively organic way, it’s exciting.”

Rush said the move happened too soon for him to have a line item in his budget for NCAA athletes, and he’ll need to do a lot more research to understand how to place a value on related promotions.

One the one hand, it won’t make sense to pay someone $20,000 if the outcome is an extra 20 tickets sold to a game. On the other hand, he’s already seen UM athletes who are coming to games and engaging with the PaddleHeads on social media.

“To be able to offer someone with a strong social media following (tickets) to act as a bit of an influencer and not get in trouble for getting offered tickets to a game, it’s nice,” Rush said of one possibility.

In the past, he said the PaddleHeads had wanted to do things like host a barbecue for the softball team to celebrate a great season, but the rules didn’t allow it, even if it wasn’t connected directly to marketing.

“It’s nice to be able to have the opportunity for a true community partnership, and if we can find a way to benefit both sides, then it just makes sense,” Rush said.

He said it’s likely the PaddleHeads will start offering tickets in exchange for social media promotions as early as the next couple of weeks, but he said the contracts will take more time. Rush said those require dotting i’s and crossing t’s to ensure both parties are taken care of.

He also said the benefit to athletes is long overdue, athletic scholarships aside.

“There’s also been a ton of opportunities for these athletes to capitalize on their likeness and capitalize on all the hard work they’ve put in to become elite at their respective sports,” Rush said. “And I think it’s something that will grow and evolve. Things that we see now will look at little different … But it’ll be fun to hopefully be part of the process and create some relationships that ultimately will just strengthen the bonds with the community.”

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Celebrity athletes can earn big money from fame, but at UM, which with MSU is part of the Big Sky Conference, Gee anticipates social media promotions will represent the bulk of any NIL activity for students. Already, she said students are filing disclosures and asking questions.

“That’s why we felt quite a bit of pressure to get a policy in place as quickly as possible since the NCAA rule went into effect July 1,” Gee said. “If we didn’t have a policy in place, then our student athletes would either potentially be doing things that could hurt them in the future from an eligibility standpoint or not be able to take advantage of anything until we got a policy in place.”

The NCAA policy does not allow pay-for-play, and UM and MSU aren’t allowed to try to outbid each other to recruit students or offer inducements in recruiting. The policy adopted at UM, which will be mirrored by MSU, notes students can’t contract with companies from prohibited industries, such as gambling, tobacco, alcohol, those representing performance enhancing drugs, or recreational marijuana. It also prevents any UM employee from working as an agent for college athletes, among other restrictions.

Gee noted that some contracts may conflict with the institution’s sponsorship, such as UM’s relationship with Coca-Cola for beverages, and those deals might not fly: “So if we had a student athlete who wanted to participate with Pepsi — it’s very unlikely because those are big-time corporations — but we would have to take a look at that, and we might prohibit that type of activity.”

Even though it isn’t in effect yet, she said the law Montana adopted, Senate Bill 248 sponsored by Democrat Sen. Ellie Boldman of Missoula, meshes well with the NCAA guidelines minus one significant difference. The state law would allow institutions to help student athletes find deals, but the NCAA indicates campuses cannot act as their agents.

“We can educate, but we cannot facilitate,” Gee said. “We certainly can educate them on promoting their brand, (and) obviously educate them about the policy. But we cannot help them find those opportunities.”

She said campuses also need to be careful to comply with Title IX, which protects against gender discrimination in education. For example, Gee said if she were to help a football player get a sponsorship worth a chunk of money, even if she didn’t provide that money herself, she would be facilitating that opportunity to a male student athlete and potentially raise a question of equity.

“No one has said OCR (the U.S. Department of Education’s Office for Civil Rights, which enforces Title IX) would come at me because it’s a Title IX violation, but there are legal people that have cautioned about heavy institutional involvement because of Title IX issues,” Gee said.

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Gee and Costello both said the campuses will have to tweak their policies as unanticipated issues arise, but there’s still a need for a national and permanent standard.

“I guess that’s what creates the biggest challenges,” Costello said. “There still are definitely differences. I think we’re going to learn a lot along the way.”

Gee noted the NCAA’s senior leadership still is working with federal legislators to come up with a federal solution. She anticipates an outcome within two years and agreed the patchwork of policies is problematic: “Having different state laws just really is chaotic.”

Last month, the U.S. Supreme Court ruled in an antitrust case that the NCAA may not place limits on education-related benefits to student athletes. The case didn’t directly involve NIL, but NCAA President Mark Emmert told ESPN antitrust concerns prevented the NCAA from coming up with specific rules itself.

At MSU, students have been asking many questions, as have possible sponsors who have “a keen interest in sports” and connect with customers (or potential customers) through sports, Costello said. He said nobody wants to misstep and face unnecessary ramifications later.

“We’re just very thankful the student athletes and companies alike are asking questions,” Costello said.

Even as the campus relays protocols to students, Costello said it advises them the landscape is liable to shift: “Here’s what you do knowing that things are going to change, and probably in the short amount of time, change rather rapidly.”

Both campuses also are talking about how to help students build their brands, although the conversations are in early stages. (And Gee said even a professor in the College of Business is not permitted by the NCAA to advise students on specific contract negotiations, just on general branding.)

At MSU, Costello said the athletic department will invite business and marketing professors to present to teams and even hold symposiums on campus. He said the Big Sky Conference also will be helping to educate students.

“Our hope is to have something ready to go here this fall for our student athletes,” Costello said. “We don’t have the details yet.”

Gee noted some campuses have full blown curriculum on personal branding. She said the changes underway with the NCAA are significant for students, and UM can teach them fundamentals, whether for their future employment or social media presence, without overstepping the governing body.

“So those types of things certainly we can be involved in because they are educational,” Gee said.

Guidance from NCAA on Name, Image, Likeness

  • Individuals can engage in NIL activities that are consistent with the law of the state where the school is located. Colleges and universities may be a resource for state law questions.
  • College athletes who attend a school in a state without an NIL law can engage in this type of activity without violating NCAA rules related to name, image and likeness.
  • Individuals can use a professional services provider for NIL activities.
  • Student-athletes should report NIL activities consistent with state law or school and conference requirements to their school.

***

The NCAA notes the interim policy will be in place until either federal legislation is in place or a formal NCAA rule is adopted. 

Helen Thigpen, with the Montana Office of the Commissioner of Higher Education, said the biggest goal from the system level is that students have sufficient training and guidance on what is and is not allowable by the NCAA. She also said the Commissioner’s Office wants the flagships to be on the same page, and MSU confirmed Monday it is working on a policy that will reflect the one UM adopted.

“We just are really going to be emphasizing that there is a consistent approach among the flagship campuses,” said Thigpen, executive director of government relations and public affairs.

It’s unclear how many student athletes in Montana could secure deals to profit from their personas, but Thigpen said it will be at least a handful, and it could be more than expected.

As activities start picking up, Gee said campuses will need to dig into the businesses or entities the students plan to represent to ensure they’re above board and not connected to sports wagering or performance enhancing drugs, for instance. She said a third party consultant may help, but it could be a lot of work to check for potential pitfalls.

“That’s what I worry about in a compliance office,” Gee said.

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. In Montana since 1998, she loves hiking in Glacier National Park, wandering the grounds of the Archie Bray and sitting on her front porch with friends. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana. She worked there from 2006 to 2020. As a Missoulian reporter, she was named a co-fellow by the Education Writers Association to report on a series about economic mobility; grantee of the Society of Environmental Journalists for a project on conservation from the U.S. to Africa; and Kiplinger Fellow in Digital Media and Public Affairs Journalism. She previously worked at the Great Falls Tribune and Missoula Independent, and she earned her master’s in journalism from the University of Montana. She lives in Missoula with her husband, Brock, who is also her favorite chef, and her pup, Henry, who is her favorite adventure companion. She believes she deserves to wear the T-shirt with this saying: “World’s most mediocre runner.”

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