Pandora's Keg: Will there be an unrestricted market for alcohol-related name, image and likeness endorsements for college athletes?

Universities have officially licensed beer, wine or liquor brands. If schools are making money from alcohol sales and production, why couldn't athletes of a legal age profit from alcohol endorsements?

If New Mexico State University’s officially licensed beer, which is brewed by the New Mexico-based Bosque Brewing Co., was an athletic program at the university, it would generate the third-highest ticket revenue of any of the Aggies’ teams. In this hypothetical hops-to-happy hour world where cans are now competition, the three New Mexico State athletic programs that generate the most gate revenue would be men’s basketball, then football, then Pistol Pete’s 1888 Ale.

On its 2020 NCAA Financial Report, New Mexico State reported $950,302 in ticket revenue from its men’s basketball program and $760,369 from its football program during the 2019-20 fiscal year. Women’s volleyball checked in next with $24,166 in ticket sales, just ahead of baseball ($18,740) and women’s basketball ($18,690).

New Mexico State was one of the universities on the ground floor of the collegiately licensed beer, wine and liquor market. The university is contracted with the Collegiate Licensing Company (CLC) and in 2016, a CLC representative approached New Mexico State Athletic Director Mario Moccia to ask, “What would you guys think about getting into the consumables space?”

“And the next question was, ‘OK, what’s that?’” Moccia recalled to Out of Bounds, “and they were like, ‘Well, you know, it’s anything edible, drinks, et cetera,’ and they mentioned beer and I said, ‘Boy, that’s really intriguing. Let’s see if there’s somebody who’s interested and then I have to get approval.’”

It just so happened that Bosque Brewing Co. had recently opened a new location in Las Cruces, across the street from the university. The brewery, which was founded by a couple of New Mexico State alums, was in the process of creating a golden ale, which didn’t yet have a name, and the owners were interested in the potential partnership.

“At the time, there was only like three or four collegiate beers out there,” Moccia said. “You know, one was Louisiana-Lafayette, Tulane, I think maybe Montana, but I think that was it.”

Soon, a graphic designer was hired to help design the can for the beer, which is named Pistol Pete’s 1888 Ale in honor of the year when the university was incorporated. The can is collegiate-looking, with crimson, white and silver colors, and the lyrics of the school’s fight song are on the can, too. “While many ales are developed as a complement to food, ’88 ale will also complement whichever Aggie sports team you’re rooting for,” stated the official news release in 2017.

“Not only is Pistol Pete’s 1888 Ale a must for any Aggie fan, it will help promote the university throughout the state. Proceeds from each purchase also helps NMSU athletic programs become financially independent.”

Initially, Pistol Pete’s 1888 Ale was only sold in kegs. “It was popular,” Moccia said. “It was a neat thing but when it was put in cans, then it took off exponentially like I could never have dreamed.”

Last fall, New Mexico State University announced the launch of the first collegiately licensed whiskey, which is called Pistol Pete’s Six-Shooter and distilled by Dry Point Distillers. The official news release stated, “A portion of the proceeds will go to support NMSU’s more than 400 student-athletes.”

After filing a public records request for a copy of any licensing agreements related to Pistol Pete’s Six-Shooter, Out of Bounds obtained a contract amendment between IMG College Licensing, LLC and the Board of Regents of New Mexico State University, which was signed in September 2019 and that took effect July 1, 2020. The two parties agreed IMG College Licensing will pay the university 72.5 percent of the first $50,000 of annual revenue resulting from the use of the university’s indicia, then 75 percent of the next $150,000, and 80 percent of all annual revenue in excess of $200,000. The current agreement expires June 30, 2027.

The university has also licensed Pistol Pete’s Crimson Legacy, which is a Cabernet Sauvignon.

Moccia recently shared a picture on Twitter of his collegiately licensed beer collection, which features the recent addition of Karbach Brewing Co.’s Texas A&M-branded 12th Man Lager.

“I got five more to go,” Moccia said of his collection, “so I’m working on them.”

So, on top of universities selling alcohol at regular season sporting events and alcohol being available at NCAA Division I championships, college athletics is officially tied to the beer, wine and liquor production business, too.

Soon, college athletes who are of legal drinking age could potentially get a cut when they’re allowed to monetize their name, image and likeness (NIL).

The role, rules and reaction to alcohol in college athletics

In October 2017, the NCAA Board of Governors revised its association-wide policy to allow each of the NCAA’s three divisions to pursue their own legislation regarding the sale of alcohol and alcohol sponsorships at their respective championships. Division I responded by voting to allow the sale of beer and wine at championship events.

A report from an NCAA Board of Governors meeting in October 2019 noted that all three divisions were considering legislation that would modify or eliminate restrictions on alcohol-related advertising, such as limitations that prevented advertising for beer, wine and liquor that is greater than six percent alcohol by volume, or alcohol-related ads being limited to 60 seconds per hour during the broadcast of an NCAA championship. The original legislation was passed “several decades ago and since that time the alcohol beverage industry has moved away from the six percent alcohol by volume limitation,” noted a report from a NCAA Board of Governors meeting in August 2019.

The NCAA sought to “align the NCAA championships advertising policies with those of other athletics organizations.”

In October 2019, the Board of Governors was asked to consider modifying restrictions such that beer, wine or liquor companies would be allowed to become sponsors of NCAA championships, but the Board declined to support changes to those alcohol-related sponsor categories. A report from the meeting said the motion failed 11-7.

While there has been some turnover in the Board of Governors since the motion failed, if the Board ever re-evaluates its stance on alcohol-related sponsorships for NCAA championships, it would only take three additional votes in support for a majority of the Board to be in favor of beer, wine and liquor sponsors, which would be yet another example of college athletics embracing alcohol-based sources of revenue. That hypothetical decision probably wouldn’t make a noticeable difference in the viewing habits or experience of watching college sports, but it leads to an interesting, related question as to what, really, would be stopping college athletes who are of legal drinking age from promoting their favorite local bar and grill when NIL rights are granted to college athletes, other than some potentially pearl-clutching concerns about optics.

However, there are currently college athletic programs whose most severe restrictions regarding alcohol consumption is that their athletes can’t drink one or two nights before a game, so those concerns about optics could be overstated. We’ll touch on that more later.

Last October, the NCAA Division I Council announced that the NIL concepts introduced during the 2020-21 legislative cycle would not allow athletes to get involved in any sponsorships involving banned substances, or companies or products that conflict with school values or existing university sponsorships:

Additionally, they could not participate in activities involving a commercial product or service that conflicts with NCAA legislation (such as sports wagering or banned substances), and schools would have the opportunity to prohibit activities that conflict with school values or existing sponsorship arrangements. The school would be required to disclose activities that would be prohibited at the time a student is admitted or signs a financial aid agreement.

While alcohol is listed among the NCAA’s banned substances for the 2020-21 academic year, that only applies to athletes who compete in rifle. NCAA Associate Director of Communications Michelle Hosick confirmed that the NIL concepts that the DI Council proposed last October wouldn’t prevent athletes who compete in other sports from promoting alcohol because the use of alcohol isn’t otherwise addressed by NCAA rules. Hosick noted that laws could prevent underage athletes from promoting alcohol products and that individual schools could have policies that prevent athletes from promoting alcohol-related products or businesses.

The Student Athlete Level Playing Field Act, which is a bipartisan bill submitted to the U.S. House of Representatives and sponsored by Rep. Anthony Gonzalez (R-OH) and Rep. Emanuel Cleaver (D-MO) last September, states that any alcohol company or brand would be among the exceptions for endorsement contracts, along with any tobacco company or brand, any seller or dispensary of a controlled substance, any adult entertainment business, and any casino or entities that sponsor or promote gambling.

Covered athletic organizations or institutions of higher education could prohibit an athlete from signing a contract with a company or brand in any of those industries.

However, other state and federal NIL bills don’t specifically address alcohol, potentially paving the way for an unrestricted market in this industry for college athletes who are at least 21 years old. California Senate Bill 206, which is otherwise known as the “Fair Pay to Play Act” and which will go into effect on Jan. 1, 2023, doesn’t specifically address alcohol-related sponsorships, only that an athlete can’t sign a contract that conflicts with the team contract:

(e) (1) A student athlete shall not enter into a contract providing compensation to the athlete for use of the athlete’s name, image, or likeness if a provision of the contract is in conflict with a provision of the athlete’s team contract.

In Florida, Senate Bill 646, which followed bills passed in California and Colorado, and which goes into effect July 1, 2021, similarly states:

An intercollegiate athlete may not enter into a contract for compensation for the use of her or his name, image, or likeness if a term of the contract conflicts with a term of the intercollegiate athlete’s team contract. A postsecondary educational institution asserting a conflict under this paragraph must disclose each relevant contract term that conflicts with the team contract to the intercollegiate athlete or her or his representative.

Likewise, Colorado Senate Bill 20-123, which was signed in March 2020, doesn’t address alcohol specifically, but it notes, “A student athlete shall not enter into a contract providing compensation to the student athlete if the contract conflicts with a team contract of the team for which the student athlete competes.”

In a statement provided to Out of Bounds, U.S. Sen. Chris Murphy (D-CT) said, “The NCAA is a $15 billion industry in which predominately white coaches have unfettered access to endorsement deals while predominately Black athletes aren’t afforded the same opportunities. That’s just not right, and exactly why I introduced the College Athlete Economic Freedom Act, which would provide unrestricted rights to athletes to make money off their talent through endorsement deals or other means. These college athletes should fully own their brand, and be entitled to the same rights as their coaches and NCAA executives.”

Current Kansas football coach Les Miles and former Duke, Florida and South Carolina coach Steve Spurrier both previously signed endorsement deals with Dos Equis, although neither was an active head coach at the time.

While there is a decreasing number of unexplored, alcohol-related frontiers (or biergartens, vineyards or distilleries) left in college athletics, the industry moved slowly in regards to its openness towards the beer, wine and liquor industries, before it began to make up for lost time in the last half-decade.

It wasn’t until January 2016 that the NCAA Board of Governors approved a pilot program to allow the sale of alcohol at select DI championships – the College World Series and the Women’s College World Series – and it wasn’t until the 2017-18 legislative cycle that restrictions preventing the sale of alcohol at DI championships were eliminated. At the Division III level, following a pilot program that allowed alcohol to be sold at the men’s lacrosse championship, the DIII Championships Committee announced in June 2018 that alcohol sales would only be permitted during joint championships that are held in the same venue as a DI championship.

The SEC didn’t lift its conference-wide ban on alcohol sales in public areas inside on-campus stadiums and arenas until 2019. But over the course of the last five years, a bubbling storyline – quite literally – in college football has been which schools have allowed the sale of alcohol inside stadiums and what selection of alcohol is available at each.

Moccia, who held the same position at Southern Illinois University before being hired by New Mexico State, said the former didn’t sell alcohol to the general public at sporting events when he was there. Alcohol was only available in suites and controlled club areas. When he arrived in Las Cruces, New Mexico State was just dipping its toe in the hop-boiled, fermented water.

“I will never forget this, on the very first game,” Moccia said, “I want to say it was against UTEP, where we have usually a very, very good crowd, and we were selling beer for the first time and the Chief of Police Stephen Lopez said, ‘Wow!’ We had, I want to say it was one or two arrests at a game and he said, ‘This is by far the lowest issues we’ve ever had in the tailgate lot.’ And you know what, you didn’t have to slam beers in the tailgate lot because you could leisurely buy them in the stadium and when you saw that in the actual numbers, we have yet to have any problems from an alcohol standpoint.

“[The] Pan Am[erican Center] – this was, what, two years ago – had five consecutive sold-out Garth Brooks shows, one of Friday night, two on Saturday, two sets on Sunday. Five shows, all sold-out, twelve-thousand, five-hundred people, sold beer like you wouldn’t believe.

“One arrest in three days.”

When it came to selling alcohol to the general public, colleges and universities across the country not only found an additional source of revenue, but many also experienced fewer arrests on game days, for the reasons that Moccia outlined. The monster under the bed that was previously believed to be big, drunk and scary instead stuck his arm out to hand universities thousands of dollars while also being friendlier and less prone to violence than he was before.

The current team policies about athletes drinking alcohol

While the NCAA and some lawmakers have made the argument that schools could prohibit athletes from signing contracts related to products or services that would conflict with school values or previously signed contracts, there are many examples of athletic programs whose current team rules regarding alcohol can essentially be chalked up to some form of the following: “If you’re at least 21 years old, then you can drink, just don’t drink a day or two before competition, don’t drink at team or university functions, don’t be publicly intoxicated or get behind the wheel of a car after drinking, don’t post about alcohol on social media, and don’t give any alcohol to recruits during their official visits.”

That’s very different than “Don’t ever drink alcohol,” which is roughly the policy for other programs that have stricter standards. Through public records requests, Out of Bounds analyzed more than 60 team rulebooks at Power 5 schools to see each program’s stance on its athletes drinking alcohol.

The 2020-21 team rulebook for the Indiana women’s volleyball program says, “A sensible drinking policy will be in effect again for this year.” The rulebook then includes examples, such as only athletes who are of legal drinking age can drink, no one is allowed to drink within two days of a match, players are never allowed to be intoxicated in public (at risk of suspension or dismissal), and if the team decides upon a dry season, then everyone on the team needs to honor that rule.

Kansas State women’s volleyball players, Missouri women’s basketball and volleyball players, and Rutgers women’s basketball players who are 21 years or older are prohibited from consuming alcohol within 48 hours of a game (or practice, in the case of Kansas State and Rutgers), although the Wildcats’s rulebook also notes, “During season, our expectation is that consumption of alcohol will be very, very limited...if at all.”

North Carolina’s women’s gymnastics team has a 36-hour rule, which is defined as:

If a team member is of the legal drinking age, you may not consume alcohol within 36 hours before the next team meeting, practice session, training session, academic meeting or sports medicine appointment.

The alcohol policy for Kansas State football and men’s basketball players reminds them that it’s illegal to consume alcohol if you’re under 21, and the policy says players should not drink on weeknights or the night before a game.

All of these rules seem realistic and fair, and they don’t come off as pearl-clutching about college students who are of legal drinking age choosing to consume alcohol on occasion.

While the team rulebook for Texas A&M’s equestrian team says, “The consumption of alcohol by any member of the team is frowned upon,” three bullet points later, the rulebook states, “No alcohol on competition weekends starting the night before – or attendance to bars during competition weekends (home or away).” Pretty much, we don’t want you to drink and we might judge you for it, but if you’re 21, just make sure you don’t drink the weekend of a competition.

For some college football programs, Saturday night is the only time when players who are of legal drinking age are allowed to drink alcohol, since they’ll typically have an entire week until they play again.

During the 2020 season, here was the in-season alcohol policy for the Texas football team, according to the football coaches manual:

There will be NO drinking during the season, with the exception of game night, but only under the following conditions:

  1. must be of legal age (misdemeanor or citation)

  2. no public intoxication, including any disruptive action(s) that will affect the attitude of this football team or public perception.

  3. no DUI (misdemeanor or felony)

  4. complete understanding of recovery/performance process and what role alcohol plays.

The first rule under Iowa football’s 2020 in-season training rules was that “all players must stay away from alcoholic beverages and places connected with alcoholic beverages (bars, parties, etc.) Sunday thru Friday nights.” For the school’s men’s basketball program, however, the official team policy is more lenient. “The use of alcohol is strongly discouraged but not prohibited provided you are of legal age,” the policy reads. “Our philosophy is you should never put yourself in a position where you could embarrass yourself or the program.”

Some programs have much stricter policies, which are intended to prevent athletes from drinking alcohol during the season. Texas A&M’s women’s basketball team’s rulebook states “student-athletes are not permitted to consume any alcoholic beverages or use tobacco products during the competition season.” South Carolina’s women’s basketball players are told in their team rules that drinking alcoholic beverages is prohibited and North Carolina women’s volleyball program has a philosophy that none of its players should consume alcohol during the season.

North Carolina women’s basketball’s program’s list of team standards tried another approach by including the following graphic about the effects of alcohol on athletes, which can linger for days after drinking.

Whether first passed by Congress or whether the NCAA finally adopts an association-wide policy in response to the Florida law that will go into effect in July, if the ultimate, national NIL policy doesn’t specifically restrict athletes from signing alcohol-related contracts, then it will be up to individual schools and athletic programs to determine if, and how, they will try to restrict those potential endorsements, similar to how each program implements its own alcohol policy currently.

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“He’s going to look back in 2027 and say, ‘I could’ve been a millionaire'”

Former Indiana men’s basketball player Tim Priller, a four-year fan favorite who scored 26 points in 35 career games while playing for the Hoosiers from the 2014-15 through the 2017-18 seasons, once had his likeness used by a local bar in Bloomington in the form of t-shirts that read, “It’s Priller Time,” as a play on “It’s Miller Time.”

The university quickly prevented the release of the shirts.

“There’s no 13th man that ever has had such marketability in the entire timeframe of college athletics than Tim Priller,” Indiana coach Archie Miller told me, laughing, in 2019. “I mean, seriously, [IU radio voice] Don Fischer is here; there’s never been a player that I have ever run into that could capitalize more than he could. That’s a credit to him. He’s an unbelievable guy.”

“Ten years from now, Tim Priller will be telling his kids, ‘I was way ahead of my time,'” Fischer said. “‘I could’ve made a lot of money.'”

“You know what, without question,” Miller said, “if you ever looked at the name, image and likeness of a person to be able to market themself, that guy right there, he just wasn’t at the right time. He’s going to look back in 2027 and say, ‘I could’ve been a millionaire.'”

The anecdotal example of Priller’s marketability also provides a reminder that an athlete’s earning potential can outpace his or her talent or production if he or she has other marketable skills or qualities, such as an engaging personality, a large social media following or a side business. The embargoed “It’s Priller Time” t-shirts also present a potential path to alcohol-related endorsements that are more about a player’s likeness than solely promoting the consumption of alcohol, per se.

At Indiana, my alma mater, students often line up outside of a local bar near campus on Thursdays, sometimes for hours, to get a limited supply of original t-shirts, the most popular of which feature the name or likeness of a former Indiana athlete, such as Yogi Ferrell or Tevin Coleman.

While t-shirts can be popular clothing and collector’s items, this once-a-week but one-time-only model of t-shirt production can create both a recurring revenue source and intense demand, not unlike that of a consumable item, such as a limited-release beer.

“You have an Indiana t-shirt, I assume?” Moccia asked during our conversation. (Twelve of them, actually, and at least a third of them are from those Thursday nights of waiting – or with the right connections, cutting – in line on the corner of East Kirkwood Avenue and South Dunn Street.)

“How many years have you had that shirt? Probably for a long time. So the school had a little piece of that t-shirt and you’ve kept it for ten years. The beauty of the consumables is every time you have a beer or a glass of wine or a cup of coffee or whatever, the school is getting revenue, which means the athletic department here is getting revenue, so that to me – this may not be as big of a deal at a Alabama or a Texas A&M or what have you – but for us, Bosque Brewing Company became our number two licensee.

“I mean that grabbed me by the shirt tails. I was like, ‘Holy cow!’”

Through Bosque Brewing Co.’s distribution, which is through Admiral Beverage, which is the Coors Light distributor in the state, Moccia said fans can buy Pistol Pete’s 1888 Ale in 300 locations in more than 70 cities. “That’s how you move the needle,” Moccia said, “so that can’t be ignored.”

The school has a beer locator to help fans find the nearest cities and stores that sell Pistol Pete’s 1888 Ale and the university promotes its licensed alcohol brands on its official social media platforms. But after the ink dried on the official agreements, other parties take care of much of the heavy lifting.

“It’s a hands-off project,” Moccia said. “You know, I’m not making the beer, I’m not pouring it, so it is truly a recurring revenue source, way different than hats and t-shirts.”

Could there someday be beer cans – consumable products that double as collector’s items, à la Moccia’s own collection – that feature an athlete’s name or likeness? Could the next wave of Tim Prillers – one of the the most popular athletes on a university’s campus – soon profit off of original t-shirts or merchandise that’s either sold at bars or used as a marketing tool that’s handed out to customers who pay cover at a bar? Will athletes cash in on sponsored social media posts that promote game-day deals at local bars, pubs and breweries?

Is there a path to reasonable alcohol-related NIL endorsements?

“I think a hundred percent,” Moccia said. “I mean, you can’t get in to NIL just halfway, right? Once Pandora’s Box is open, how are you going to stop a 21-year-old athlete from doing a commercial or an endorsement for Pistol Pete’s 1888 or Coors Light or Bud Light? You can’t write that in that you can’t do that, at least I don’t think you can. I think it totally opens the door for that.”

Universities are already profiting off of licensed beer, wine and liquor, and if there’s true athletic department-athlete-alcohol synergy, then everyone wins.

“I could certainly see somebody promoting our beer, and quite frankly, if it’s legal and they’re promoting my product, they’re getting some money off of it, that’s great,” Moccia said. “And hopefully that’s going to help sales, so why would I be against that?”

Just shy of 40 percent of the votes from the Board of Governors in October 2019 were in favor of allowing beer, wine and liquor companies to sponsor NCAA championships, and if the NCAA reaches a point where it allows alcohol-related sponsors at its biggest events – in addition to a college athletics ecosystem that allows the sale of alcohol at regular season and postseason competition, and the official licensing of alcohol products by universities – then it could be even harder to explain why athletes who are at least 21 years old can’t sign a sponsorship deal with a local bar in their college town – that is, if that even winds up being a blanket or case-by-case restriction in the NIL-era of college athletics.

After Division I conferences that had postponed their 2020 football seasons slowly returned to action last fall, the players, coaches, parents and fans whose schools remained on the wrong side of the fence repeatedly asked, “Why can they play and we can’t?”

Ohio State coach Ryan Day even tweeted something to that effect.

You could potentially hear a similar refrain in the next few years, if not in the next few months, if college athletes are prevented, by law or by universities, from signing alcohol-related endorsements. After college athletics opened Pandora’s Keg and embraced more revenue streams related to alcohol, it would be fair for 21 to 25-year-old college athletes to ask, “Why can’t we?”

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Recap of the last newsletter

(Click the image below to read)

However, while a host of Kentucky fans wrote that kneeling for the national anthem was disrespectful to military veterans, multiple fans wrote to university or athletic department leaders that the school’s men’s basketball players, as well as coaches and even athletic department administrators, should travel to active war zones overseas because that would help the players’ maturity.

“Send the players on a tour of Iran, Iraq & Afghanistan & let them fear for their lives during bombings & all athletics dept. go with them,” wrote one Kentucky fan. “Perhaps that would help you mature a bit.”

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Thank you for reading this edition of Out of Bounds with Andy Wittry. If you enjoyed it, please consider sharing it on social media or sending it to a friend or colleague. Questions, comments and feedback are welcome at andrew.wittry@gmail.com or on Twitter.