The NCAA finally caved to relentless public pressure and lifted its prohibition on college athletes’ ability to capitalize on their rights of publicity. An unsurprising outcome since California passed the first collegiate name, image, and likeness bill in 2019. This is a structural paradigm shift in American sports but let’s take a moment to fully appreciate how this regulatory battle turned into the wild west.
Twenty-four states followed California after Governor Gavin Newsom signed SB206 on national television alongside Lebron, but it was ultimately the boys in Florida lead by attorney Darren Heitner, that pushed this inevitability into overdrive. You see, those first laws all took effect sometime in the non-immediate future, California’s SB206 was originally set to take effect 2023. Heitner and Co. went full Socrates and asked “Why?” and ensured theirs would be effective July 1, 2021, D-Day. This left college sports with a patchwork of state laws because the NCAA refused to read the writing on the wall and draft reasonable bylaws. They must not get paid enough in Indianapolis.
The NCAA ultimately bent the knee and lifted their name, image, and likeness prohibitions on July 1 with only two rules for the country to abide by: no pay for play and no “impermissible inducements.” Players must otherwise abide by their state’s law or their school’s policy. It was beautiful chaos.
Left to their own devices, athletes agreed to most deals that came their way with minimal guidance of how said deal may affect their eligibility, which at this point, is determined on a school-by-school basis. Bringing us to Portnoy.
Dave Portnoy, founder of Barstool Sports hopped on Instagram Live on July 1, and ham-fistedly announced Barstool Athletics, which, was self-admittedly thrown together just minutes prior to the announcement after Jacksonville State Volleyball player, Adelaide Halverson inquired about being a “Barstool Athlete”. Barstool Athletics was born. Sidenote, it’s absolutely hilarious that Barstool didn’t have a plan in place for this.
In the following days, thousands of athletes have reportedly reached out to the Barstool team to become an endorsed athlete with free merchandise seeming to be their only compensation.
SportsLawTwitter™ began questioning whether partnering with Barstool Athletics would jeopardize athletes’ eligibility because Barstool Sports majority owner is Penn National Gaming, a bookmaking and gambling operation. Though there are no express regulations against gaming endorsements, inquisitive minds asked whether Barstool’s connection with sports gambling would violate any internal college policies. One institution finally affirmed, American International College.
According to the above tweet, AIC’s compliance department either A) doesn’t understand the lack of NCAA rules, which is brilliant or B) is being willfully dishonest to pass along blame. As we’ve established, THE NCAA HAS TWO RULES AND Massachusetts hasn’t even passed their own NIL law and the bill that IS working its way through the legislature is silent on gambling endorsements.
Let’s conduct a short thought experiment using the assumption that Barstool Sports is a gaming company instead of a massive media company (it isn’t): Why are we prohibiting college athletes from partnering with gambling companies? Is it because *sports* betting is illegal in Mass? No, Celtics are official partners with Draftkings. Is it because NCAA institutions are prohibited from having gaming partnerships? No, the University of Colorado partners with PointsBet. Is it a vice thing? Are we pretending to be so puritan that we can’t stand the idea of college athletes being endorsed by a gaming company when every professional league has partnerships with one? Are we afraid an athlete will somehow give Penn National inside information on AIC’s big weekend series against Mercyhurst? Betting lines don’t even exist for the Atlantic Hockey Association.
AIC, I’m but a lowly law student and have no operational experience in college athletics but I do know a couple of things: 1) your athletics department isn’t exactly Michigan and 2) Springfield isn’t exactly Los Angeles, exposure is limited. I’d be in the business of allowing your athletes to take what they can get, especially when that something is the most popular digital media brand in New England.
This site’s founder, Dan Lust called on Barstool to do the right thing and warn athletes about the potential perils of partnering with them, but me and my infinite influence is calling on AIC and other schools that arbitrarily prohibit partnerships within certain industries to stop it and let the kids GET PAID….in merch.
