Updated: Sep 2
On July 1, 2021, the long-awaited Name, Image, and Likeness (NIL) era of collegiate sports commenced. Effectively, within the limitations of various State laws, University NIL policies, and the NCAA’s new flexible NIL approach, student-athletes are permitted to monetize based off their names, images, and likeness to formally grow their individual brands, a stark contrast from the NCAA’s previous Amateurism rules prohibiting such conduct.
Within the first day of NIL eligibility, Barstool Sports founder and President Dave Portnoy, otherwise known as El Presidente, jumped on a live stream to announce the establishment of Barstool Athletics. Under this newly announced branch of the media giant that is Barstool Sports, Portnoy invited student athletes to apply to become members of the Barstool Athletics team. Details of the Barstool Athletics program are few and far between; Portnoy himself stated during the live stream that “I didn’t give it a ton of thought.” Nevertheless, within days of the announcement, Portnoy confirmed that over 100,000 student athletes had already applied to be founding members of Barstool Athletes.
Portnoy’s comments and the speed at which Barstool Athletics “signed” student athletes has prompted the Sports Law world to raise questions about whether Barstool Athletics may cause student athletes to be ruled ineligible by their respective universities’ athletic departments. This comes as a direct result of Barstool Sports’ current nature; in January 2020, Penn National Gaming purchased a 36% stake in Barstool Sports for over $160 million. Since this purchase, Barstool has launched the Barstool Sportsbook, currently offering in-person and online betting in Pennsylvania, Michigan, Indiana and Illinois. Barstool also hosts multiple gambling shows and podcasts, further entrenching their status in the gambling sphere.
The clear connection between Barstool Sportsbook and Barstool Athletics raises significant questions about the supposed legality of Barstool Athletics’ NIL program. As sports attorney and Conduct Detrimental Host Dan Lust noted, certain State laws and University NIL policies explicitly prohibit NIL agreements that promote sports gambling or casinos. Given Barstool’s roots in the gambling industry and popular Barstool personalities’ frequent promotions of Barstool Sportsbook, student athletes who have joined the Barstool Athletics frenzy may be risking their eligibility for currently uncertain rewards. And, with over 100,000 applicants to the Barstool Athletics program, the potential for mass ineligibility rulings may be looming ominously over uninformed student athletes.
In response to concerns online regarding Barstool Athletics’ threat to student athletes’ eligibility, newly initiated Barstool Athletics member and New Mexico State University Swimmer Carli Baldwin took to TikTok to alleviate the uncertainty surrounding Barstool Athletics. In her TikTok video, Baldwin explains that in Portnoy’s welcome email to Barstool Athletes, Portnoy emphasized that Barstool Athletics would not be asking any interested student athletes to sign any sort of exclusive agency or branding contracts. Rather, Portnoy stated that Barstool Athletics’ plan was to enable student athletes to promote their own individual brands and likenesses via Barstool’s expansive online media presence. Baldwin continued to explain that, despite beliefs over the nature of the program, Barstool Athletics was acting marketing agency for student athletes, instead of what many believed to be a sponsorship program. If Baldwin’s TikTok explanation remains true in practice, it certainly could alleviate some of the concerns facing the legality of Barstool Athletics.
On July 11th, Darren Heitner, a Florida sports and entertainment attorney and recurring guest on the Conduct Detrimental podcast, discovered that Barstool had filed intent-to-use trademark applications on July 2nd to protect the Barstool Athletics name. These trademarks sought to register the Barstool Athletics name as a service provider of business management and advice for athletes, as well as a service provider for entertainment services including podcasts, news, and commentary surrounding sports and entertainment. Barstool’s trademark filings support Carli Baldwin’s message that Barstool Athletics is not a student athlete sponsorship, but rather an entity to help support and grow student athletes’ individual brands. Due to the ongoing uncertainty in the absence of Federal NIL legislation, Barstool Athletics appears to be a vehicle to enable student athletes to achieve success and maintain appropriate compliance in expanding the reach of their names, images, and likenesses.
Ultimately, whether Barstool Athletics can truly differentiate itself from Barstool’s gambling brand so as to ensure student athletes do not face eligibility questions will depend on how individual universities interpret their own NIL policy or State’s law regarding NIL agreements with gambling entities.
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Thumbnail taken from the Blackhawk Ameristar website