Strange as it may be, with vast majority of the world still reeling from the COVID-19 pandemic, we are on the eve of the opening ceremony for the “2020” Tokyo Summer Olympics. Olympic games in “normal” times are logistical feats involving tons of preparation and organization. Pair that with the challenge of trying to prevent a full-blown outbreak of COVID-19 (and potential losses in the tens-of-billion-dollars range) in a densely populated country seeing a new surge of cases, and you have Olympic officials in dire need of Japanese whisky. While these Olympics will be held without the usual crowds in attendance, making for another eerie sight (unless you’re used to watching Mets games), the risks of holding the Games still remain high. Hopefully, the Games go on without a hitch and will highlight their virtues of human resiliency and cooperation on the global stage, but I, like many others, cannot help but wonder about the further propagation of this virus, and whether we would be better served to stay on the sidelines just a little longer. Besides, I generally favor spotlights over torches.
…Which reminds me, it’s time to dive in to the Spotlight for this week:
Just two weeks into the name, image, and likeness (NIL) era in college sports, and we are already starting to see not only novel and creative partnerships, but also the emergence of legal gray areas and pitfalls for college athletes. This was, of course, to be expected with the NCAA acting with last minute haste (rather than methodical planning) coupled with the euphoria of athletes who could finally make endorsement money without losing NCAA eligibility. Under those circumstances, nuance is out the window — until it isn’t. Case in point: the rise of Barstool Athletes, the fledgling collegiate athlete marketing arm of digital media giant, Barstool Sports. On its face, Barstool Athletes offers a straightforward, merchandising- and social media-driven formula for athletes to market themselves to fans. However, in the rush to capitalize on this opportunity, student-athletes of schools in states that prohibited NIL deals with traditionally vice-oriented businesses, overlooked that Barstool could be construed as a company in the gambling business. Indeed, Barstool operates a sportsbook and was acquired by Penn National Gaming in early 2020. Now some of those who leapt before they looked could be risking their eligibility, after all. Above all, until there is more uniformity and/or stronger guidance across the country, student-athletes are safest clearing deal with their schools’ compliance departments.
From reference to vices, I shift to celebrating your virtue as you patiently waited for this week’s installment of the Spotlight. So let’s get to it:
Laws — like people — are imperfect. They can be slow to adapt to evolving societal norms, and worse still, their application can yield unjust outcomes. Indeed, look no further than this past week’s developments involving Olympic-hopeful Track & Field athlete, Sha'Carri Richardson. Almost as quickly as Richardson could sprint, we saw her go from Gold Medal favorite to spectator after a drug test administered (after her first place finish in her U.S. Olympic trials) revealed that she had used marijuana, a substance banned by the U.S. Anti-Doping Agency and still officially illegal at the federal level. Never mind the facts that first, marijuana was legal in Oregon (the state in which she had used the drug) and a substantial plurality of states; second, she had used the drug as a means of coping with the trauma of learning of her biological mother’s abrupt death; and lastly, the drug is not performance-enhancing. To the U.S. Track & Field team, the rules are the rules. Perhaps Richardson’s plight will spur policy change — much like the years of collegiate athletes being declared ineligible for having received compensation, which have led to overdue name, image and likeness (NIL) reforms — but you cannot help but feel for Richardson for all she has lost, personally and financially. I know I will be pulling for her when her chance at Olympic glory hopefully comes back around in 2024 (approximately 150 Spotlights) from now.
With that, here’s what else is making waves this week:
Well, today is the big day. If you’re reading this week’s installment of the Spotlight, it means that you survived the long and arduous journey of the name, image and likeness (NIL) era in college sports. Indeed, with the National Collegiate Athletic Association (NCAA) Board of Directors agreeing this week (Wednesday, June 30) to waive enforcement of its prohibition against collegiate athletes making money off of their NIL rights (their fame) amid interim guidance to schools, we find ourselves in a brave new world where you might see your alma mater’s star quarterback licensing his or her NIL rights, newly-designed logos (I see you, Graham Mertz) for commercial use in anything from an advertisement for the off-campus car dealership to one for a multinational car brand. As ever, the devil is in the details, and in schools adopting their own rules and programs designed to educate and empower their student-athletes – particularly in the vast majority of states that do not have NIL legislation coming into effect today – those details are all the more devilish given that the NCAA spotted them less than a week to prepare its athletes (and themselves) for a moment that the NCAA could not itself prepare for in the span of years. With so much potential for uncertainty and confusion in this landscape, now more than ever, it is incumbent on educators, business advisors, coaches and parents to play an active role to ensure that the NIL era gets off on the right foot. Still, as we roll into a weekend in which the U.S. celebrates its independence, it’s gratifying to know that college athletes will be celebrating their newfound independence (to a degree).
The Sports, Arts & Entertainment group at Foster Garvey provides full service legal representation on sports, entertainment and business matters, including handling transactions related to brand management, licensing, joint ventures, venture capital, private equity, technology, the Internet and new media.