Here's what the month of July has been like for compliance officers
Here's what the month of July has been like for compliance officers
'I think the NCAA will see this as an institutional staff member lining a deal up for a student-athlete.'
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A few weeks ago, when I looked back on Year 1 of Out of Bounds and ahead to Year 2, I teased the possibility of an audio supplement to the newsletter. I wouldn’t call it a podcast because I know the last thing a lot of us need is another podcast to add to our rotation, but I wanted to explore adding a brief audio component to the newsletter.
The goal will be to keep it short – maybe three to five minutes – unless there’s an interview or conversation that warrants more time. Within that time, I’ll try to highlight some of the most important takeaways in the latest newsletter.
Click here to listen to Episode 1 on Soundcloud. This is my first time producing and editing audio content since college, so feedback is always welcome.
Even after state laws and university policies regarding college athlete compensation went into effect on July 1, there has been no shortage of questions about name, image and likeness (NIL) rights, activities and policies. What’s allowed and what isn’t? What needs to be disclosed to universities? When and how do athletes need to seek permission to engage in certain NIL activities?
Athletes are likely directing those questions to the compliance officers in their university’s athletic department to make sure they’re following the policy established by their school or state.
So, what has the last month been like for compliance officers?
I filed a series of public records requests for emails sent and received by compliance officers from across the country to see what questions they’re receiving, what questions they’re asking and what compliance hurdles they’ve had to navigate so far.
It didn’t take long for at least one Power 5 university’s NIL policy to change
College athletes were allowed to monetize their NIL rights starting at midnight on July 1 and by 8:20 a.m. local time on July 2, the University of Minnesota had already made multiple changes to its policy. “We have already made two changes to our NIL policy (attached),” Minnesota Deputy Athletics Director/Senior Woman Administrator Julie Manning wrote in an email to the Big Ten office on the morning of July 2. “This is the July 1, 2021 version. Please disregard the policy emailed to you yesterday morning.”
It’s unclear what the changes were.
Being a compliance officer might mean your current duties, whether proactive or reactive, could include monitoring the social media accounts of your university’s athletes or troubleshooting tech issues.
Kevin Gomer, the associate director of athletic compliance at Minnesota, wrote an email to one athlete, “I noticed the below tweet on social media. Could you please complete our Name, Image, Likeness disclosure form.”
“We need this form completed prior to you engaging in any NIL activities,” Gomer continued, “which this social media post would fall into.”
Even when athletes tried to disclose their NIL activities, it didn’t always work. “I am trying to fill out the NIL disclosure form, and it says I don’t have permission to fill it out,” one Minnesota athlete wrote to the athletic department’s compliance office. “I am reaching out to receive permission.”
One compliance officer guessed that the athlete wasn’t signed in with his or her university email address, which would’ve prevented the athlete from having permission to access the form.
One university faced multiple bugs with its contracted disclosure software. One apparel company that reached an NIL deal with one of the university’s athletes doesn’t have booster status with the university, but the company was labeled as a booster in the disclosure system, even though the athlete who filled out the disclosure form said he or she never answered any questions about boosters.
It was simply a bug.
When athletes at the university sent links to online disclosure forms to companies that engaged in “offline” NIL deals, the companies never received them.
“New process, new challenges :)” wrote one compliance officer at the school.
The reemergence of trading cards
Chris Longo of Athletes First Marketing reached out to University of Florida Associate Athletics Director Kim Green on behalf of Leaf Trading Cards, which provided letters to two Florida football players, congratulating them for being selected for Leaf’s initial NIL trading card release. Longo also reached out to UConn on behalf of Leaf Trading Cards, which expressed interest in a UConn men’s basketball player, as well as a Boise State football player.
“Leaf is requesting 2,000 of your authentic signatures on cards and/or stickers,” one letter stated. The standard agreement provided by Leaf to athletes stated that they’ll have two weeks to return the signed items to Leaf once the items are delivered to the athlete.
One player was offered $5 per signature for a total offer of $10,000, while another was offered $2 per signature, or $4,000 total.
The athletes would be paid within two weeks of the the signed items being received by Leaf and they’d also receive a W9 form. According to the agreement, Leaf can request that athletes sign additional items in the future at a mutually agreeable quantity and rate, the latter of which wouldn’t be less than the per-autograph rate of the two parties’ initial deal.
“Because of NIL restrictions, you may be asked to do a photo shoot to secure the imagery necessary to create the cards,” Leaf’s Brian Gray wrote. Leaf’s standard agreement included a clause that, if needed, an athlete who signs the agreement agrees to make himself or herself available for one photo session lasting no longer than 30 minutes at a mutually agreeable date, time and location.
A memorabilia clause in the agreement states, “Leaf maintains the option to supply Personality with four (4) jerseys during the Term to be worn by Personality. If requested, the jersey is not required to be worn to any public event, including, but not limited to, any NCAA or NCAA member sanctioned event. Personality agrees to sign a sworn Affidavit acknowledging that he has worn the jersey supplied by Leaf for use in Leaf products.”
On behalf of Leaf Trading Cards, Longo requested a copy of the NIL policy that each school is following “to ensure that the trading card relationships are in compliance with your guidelines and, if the deals move to the contract phase, if they need to be reviewed by the school as well.”
Implications for visa statuses
A foreign apparel company indicated it wanted to create trading cards of a Boise State athlete, so Matt Brewer, the associate athletic director for compliance, reminded the athlete, “Remember, you are not permitted to use any Boise State logos or have any Boise State uniforms or apparel in those cards.”
Additionally, Brewer wrote, “Once you arrive back in Boise, you will not be permitted to work for this company unless immigration laws change specific to your student visa. For now, it is permissible, but it is up to you to follow the policy with those posts because there is no formal contract or usage agreement here.”
That day, Boise State’s athletic department met with the university’s legal counsel “because we may not be allowed to have our players use Boise State’s name even though I would consider it a statement of fact about you,” Brewer wrote. “For right now, I would use ‘NCAA [redacted sport] Student-Athlete’ to be safe.”
“One of the big questions that has come up repeatedly has been how our international student-athletes will need to address these opportunities to earn compensation with respect to their visa statuses,” Kam Cox, the coordinator of Illinois’ INFLUENCE NIL program, wrote in one email on June 27, before continuing, “There are a few international student-athletes who will need us to provide them with the right information because they are nearly ready to sign deals.”
International students might represent the most consequential class of college athlete in regards to NIL because they could potentially break the rules of their student visas if they engage in NIL activities, which is why many compliance offices are playing it safe. The University of Florida’s athletic department website says, “International student-athletes should not enter into any NIL agreements without the guidance from the University of Florida International Student Center to guard against any potential immigration issues.”
According to U.S. Citizenship and Immigration Services (USCIS), students who study in the U.S. on an F-1 visa “may not work off-campus during the first academic year, but … after the first academic year, F-1 students may engage in three types of off-campus employment,” but such employment must be related to their area of study and authorized by USCIS. There’s also a severe economic hardship exception.
“Universities must be EXTREMELY CAREFUL with international student athletes and NIL,” Tom Snitch, the director of federal relations at Bowling Green, wrote in one email in the first week of July, after an Association of Public and Land-grant Universities (APLU) Athletic Task Force call. “The Department of Homeland Security has this on their radar and is said to be preparing guidance. Issue - IF an international student accepts funds for NIL, they may put their student VISA in jeopardy.”
‘The creative, business team didn’t want to deal with NCAA stuff, so unfortunately they chose someone else’
One Boise State athlete was in contention to model for adidas.
“As we discussed on the phone, we cannot send a letter to [the athlete’s] modeling agent stating that her eligibility will not be affected if she is chosen,” Jodie Faulk, the assistant director of compliance at Boise State, wrote to the athlete’s mother on June 30. “However, I included the bylaw that allows continuation of modeling that is initiated before enrollment as long as certain parameters are met.”
The next week, the athlete’s mother responded, “Thank you for working on this and getting us answers. FYI… the casting directors wanted her badly. The creative, business team didn’t want to deal with NCAA stuff, so unfortunately they chose someone else. Ugh, so close :)”
“There are no NCAA parameters :)” Boise State Associate Athletic Director for Compliance Matt Brewer then wrote to Faulk.
As there’s not a federal name, image and likeness law and the NCAA’s interim policy allows for a patchwork approach to NIL from state to state, minimalism might be the name of the game.
Evan Taylor, the director of compliance at Illinois, which has developed its own institutional policy in addition to being located in a state with a law regarding athlete compensation, wrote in one email, “Now that the NCAA is taking such a hands off approach, we can use our ‘limited’ policy to our advantage.”
‘Because of our state law…would we be able to speak to one of you[?]’
The University of Connecticut’s NIL policy didn’t go into effect until July 12. A UConn football player emailed Assistant Athletics Director for Compliance Eric Schneider on July 5, saying he was contacted on social media about a potential footwear deal. “Because of our state law, do the student athletes of UConn have to wait until the 12th or would we be able to speak to one of you,” the athlete wrote in an email.
Schneider clarified what UConn’s compliance office is and isn’t allowed to discuss with athletes. “You’re more than welcome to speak with one of us prior to the 12th, however the only thing we are permitted to provide you is education on the ncaa legislation, state bill policies, and institutional policies,” Schneider wrote, “…but if it’s anything about a contract, signing, taxes, etc., then you would have to consult with an outside individual about that.”
While merchandise and apparel companies have been frequent sponsors early in the NIL era of college athletics, some compliance officers have stressed to athletes that they should do their research on a prospective company before rushing into a deal.
Regarding an apparel company that contacted one Boise State athlete directly on Instagram, Boise State Associate Athletic Director for Compliance Matt Brewer wrote to the athlete, “If it comes out that this company is running illegal sweat shops or violating child labor laws, your name will be associated with them. It is important that you do your due diligence with these companies and they are reputable so it doesn’t hurt your brand or profile.”
“One of the questions we have is on the selling of jerseys,” Benjy Wilber, the associate director of athletics for compliance at Illinois, wrote to Big Ten Associate Commissioner, Policy Chad Hawley in the first week of July. “If we deem a jersey unusable are they then able to sell it at any time? We have already seen some current students list jerseys for sale and I wasn’t sure what the mechanism was to make that permissible.
“We definitely don’t want to put our athletes at a disadvantage if others are doing it.”
Another Illinois athlete was interested in giving away his complimentary tickets, which he receives for being an athlete, as part of an NIL promotion. But Illinois’ compliance office needed clarification if that is allowed.
“Do not believe that a student-athlete would be able to sell comp tickets even as part of an NIL promotion,” Big Ten Assistant Commissioner, Compliance Gil Grimes wrote in an email. “Same thing would apply to other items a student-athlete may receive such as equipment or a jersey.”
‘It’s not me as a d1 athlete, it’s me as a kid who built a bus’
A UConn men’s basketball player was presented with the opportunity to be featured in a documentary about his childhood and his path to UConn. The documentary would include interviews with him and his family members.
“This is a very small production,” Assistant Director of Basketball Operations Paul Wettemann III wrote in an email to Schneider, the assistant athletics director for compliance. “No sound guy, no lights guy. Just 1 guy with a camera.”
Neither the documentary, nor any of the footage used, would be sold, as the documentary would be available for free online. The player wouldn’t be compensated for his appearance in the documentary.
“YES, this is PERMISSIBLE,” Schneider responded in a sentence written in green front in an email whose recipients included Director of Athletics David Benedict and men’s basketball coach Dan Hurley. Schneider noted the player wouldn’t be able to miss class to participate in the documentary, and since the player wouldn’t be “making any expressed or implied endorsement of a commercial product and/or service in conjunction with this media activity, nothing must be disclosed through Opendorse as a name, image and likeness (NIL) activity.”
Another UConn athlete had the opportunity to be featured on a TV show and reached out to the athletic department’s compliance office before he or she signed the contract. The opportunity was unrelated to the athlete’s participation in college athletics; the athlete had converted a bus to travel the country.
“It’s not me as a d1 athlete,” the athlete wrote, “it’s me as a kid who built a bus. I’m just not sure how this would play into NIL.”
The athlete’s coach was fine with the athlete participating in the show.
The show told the athlete that it would cover travel expenses and provide building materials that would be returned at the end of the show, as well as provide “a little compensation” for the athlete being on the show. The athlete said he or she would have to miss a few classes during the week of filming.
“Good catch on the missing class questions,” Schneider wrote to Assistant Director of Compliance Services Amanda Hughes. “I think this would put it at a ‘no’ regardless of it we put it under media activities (12.5.3) or NIL. Both the NCAA Bylaw for media activities and the NIL policy state that they cannot miss class.”
Schneider noted that part of UConn’s NIL policy, which hadn’t been finalized at the time, would include an appeals process, although the appeals process “may not be finalized in time to be in the policy by tonight/tomorrow/July 12 rollout.” Schneider said the athlete could appeal, in accordance with the school’s NIL policy, or seek a waiver for the NCAA Bylaw regarding media activities.
Fine, let’s talk about Barstool
In an internal email, Minnesota Associate Director, Athletic Compliance Kevin Gomer shared a tweet from attorney Darren Heitner, who noted that Barstool Sports put a disclaimer at the end of an email that it sent to college athletes regarding potential NIL partnerships that said, “when you send us a picture of yourself, you are … confirming that you have the rights required to allow us to use it.”
“Yes this needs to be a continued point of educational emphasis,” Minnesota Director of Athletic Compliance Jeremiah Carter wrote in an email. “Bartstool puts this in there so they don’t get Cease and Desist letters from Universities.”
One Boise State athlete told Boise State Associate Athletic Director for Compliance Matt Brewer in an email, “Today I received an email that I was chosen to be a Barstool Athlete and I will put the screen shot down below. I’m just checking in with you to make sure this is allowed or if I have to go through any other steps.”
“I know a lot of student-athletes are signing on to be ‘barstool athletes,’ but it may not be a permissible site due to their ownership of Penn Gaming, which is a sports wagering company,” Brewer responded, in part. “Some of their deals offer only exclusive media partnerships, so that is also something we will look at. Ultimately, we will probably permit you to enter the agreement at your own risk.”
In early 2020, Penn National Gaming announced it was making a nine-figure investment in Barstool Sports to acquire a 36-percent stake in the company.
Ten minutes after the first Boise State athlete emailed Brewer, another athlete sent Brewer a similar email about becoming a Barstool-sponsored athlete. Brewer told a third athlete, regarding Barstool, “It is important to note you are entering an agreement with them at your own risk because you will have to trust they will not utilize pictures of you in Boise State uniforms or apparel. You can say you are a Barstool athlete in your bio, but the minute they use the incorrect picture, you will be the one dealing with the problem.”
Brewer told a fourth Boise State athlete, who had yet to disclose a deal with Barstool, “I understand Barstool signed up several athletes this weekend without getting permission from the schools. They were aggressive with how they approached [student-athletes], so we will use this as more of an education moment, so make sure to disclose the opportunity and we will get them vetted.
“State laws prohibit working with gambling companies. Our policy also states that. Now we need to determine if Penn Gaming and Barstool are the same for the purposes of the state laws. I can’t say this opportunity is permissible yet because we are still finding out more about Penn Gaming and how they operate with Barstool.”
‘I’ve had several [student-athletes] from other institutions reach out about freelance work’
Among the many arms races in college athletics, ranging from new facilities to Nick Saban’s small army of analysts at Alabama, is athletic departments’ creative and digital media departments.
“One of my student workers came to me with an interesting question, and wanted to reach out to you to see if there is possibly an answer,” Houston Director of Football Creative Media Jordan Burgess wrote to Assistant AD for Compliance Ted Seilheimer. “He is one of our interns (not paid), and also does side work for creative agencies. One of [the] agencies he freelances for is getting college clients because of the NIL deal. Is he able to create content via the agency in regards to NIL? Is there only a restriction when UH athletes are potentially involved?”
Seilheimer responded, “My initial thoughts are the student worker could creative content (sic) for [student-athletes] at other schools through his employment at an outside firm. It would not be ok for him to work on UH [student-athletes’] content directly or through the outside agency.
“For [the intern] creating content for [student-athletes] at other schools, I think it is ok from a NIL perspective but worry about it from a recruiting perspective. If player is not in the portal would this be impermissible contact, and if they are in the portal then would they be [potential student-athletes] and then implicated by the NIL law (whether we are actively recruiting them or not).”
‘I think the NCAA will see this as an institutional staff member lining a deal up for a student-athlete’
Kevin Dresser, Iowa State’s wrestling coach, asked Iowa State Assistant AD for Compliance Kurt Hunsaker in an email, “Is it permissible for the C-RTC (Cyclone Regional Training Center) to pay current and future [student-athletes] to promote, develop and work for the Cyclone RTC?”
Cyclone Regional Training Center’s website says, “The center uses the wrestling room at Iowa State University and serves elite-level postgraduate resident athletes, as well as younger wrestlers from high school through college.” Additionally, “Any high-school wrestler who lives within 250 miles of Iowa State University and who finished in the Top 4 in the state Folkstyle tournament or in the Top 4 in the state Freestyle or Greco competitions is eligible to join.”
“The RTC would like to award a certain amount of annual scholarships to current and future [student-athletes] to promote our mission within the permissible 250 mile radius,” Dresser wrote. “We would like to pay these athletes $5000 and $10000 scholarships/stipends to advertise our workouts, staff, facility, etc. It would obviously be a win for ISU, our [student-athletes] and of course our RTC!
“I will remove myself from the board of directors/officers of the C-RTC if this new concept would be permissible moving forward.”
Iowa State then asked the NCAA for parameters on how such NIL deals could be conducted permissibly. “In theory, yes, any outside entity could hire [student-athletes] under new NIL guidelines to engage in promotional activities,” Hunsaker, the assistant AD for compliance, responded to Dresser. “Need to make sure the NCAA won’t view your proposed scenario as impermissible financial aid or an impermissible extra benefit since there are Iowa State athletics staff members associated with the RTC.”
Tim Day, an Iowa State professor of molecular pharmacology who serves as the university’s faculty athletics representative, added, “Yeah, I think the NCAA will see this as an institutional staff member lining a deal up for a student-athlete. If we go in this direction, we might need to make a clearer separation – such as not having staff people on both payrolls.”
Licensed merchandise
On June 30, the Collegiate Licensing Company (CLC) sent a memo to the licensing directors at its partner institutions because “many state laws and university policies allow the student-athlete to use logos and brands WITH APPROVAL from the institution,” the memo stated.
The NCAA’s temporary NIL policy allows athletes to potentially participate in what CLC described as “co-branded merchandise programs.”
“We encourage you to work with your Partnerships team as you think through your rates and policies related to these potential NIL co-branded programs,” the memo from CLC stated. “It will be important that you ensure these co-branded programs are similar to other existing co-branded programs to not appear to be offering more favorable or more stringent terms than other deals. It will also be important to make sure new NIL related requests do not conflict with current exclusive or semi-exclusive programs you may already have in place.”
Also of note: “We realize the NIL landscape continues to be confusing and seems to change daily. We fully expect for NIL policy to continue to evolve over the next 12-18 months as federal legislation shapes up and current NCAA/school policies are reviewed and adjusted.”
To help work through the changing landscape of college athletics and NIL, as the NCAA and its institutions wait for a potential federal policy, a working group formed within the state of Ohio with compliance officers from Akron, Bowling Green, Cincinnati, Cleveland State, Dayton, Kent State, Ohio, Ohio State, Toledo, Wright State, Xavier and Youngstown State.
“Coaches are already telling their [student-athletes] to get out in front and contact companies for endorsement deals,” Erik Mathis, the acting director of compliance at Akron, wrote to the group on June 29, the day before the NCAA announced its interim NIL policy. “This, to me, is very concerning since it seems like such a quick turnaround without any policy.”
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