NCAA Division I Promotional Activities Kelly Brummett Jobrina Marques NCAA Division I Promotional Activities

Overview Advertisements and promotions after enrollment. Institutional, charitable, education or nonprofit promotions. Nonathletically related promotions involving a commercial product. Going out of order – will start with 12.5.2 then move into 12.5.1.1 then 12.4.4. 12.4.4 will be high level.

It’s 8 AM!! Are you… https://www.youtube.com/watch?v=IuSqKyhEWW0

Advertisements And Promotions After Enrollment Use of name or picture to promote sale or use of commercial product or service prohibited. No payment for endorsing commercial product or service through student-athlete's (SA) use of such product or service. NCAA Bylaw 12.5.2.1 Only applies once individual becomes SA at NCAA institution (interp).

Case Study No. 1 Facts Institution's assistant coach gave each SA on the team three schedule posters and told them to hang the posters in local businesses. After SAs gave out the schedule posters, assistant coach encouraged SAs to use their social media accounts to promote the team's schedule and thank the businesses. SAs tweeted: "Java with Jan quenches our thirst and supports the (institution's) team!" Ohio Valley Conference interp.

Case Study No. 1 Questions May SAs give out schedule posters at the direction of an institutional staff member? Were SAs tweets thanking the businesses for their business permissible? Yes, OK for SAs to give out posters. Not OK that institution’s coach directed SAs to tweet. Information v. promotion.

Case Study No. 2 Facts SA really loves Java with Jan, and stops by every Saturday morning, always ordering Jan’s daily special. SA frequently posts pictures of her java on her social media account with the caption: "Jan did it again! Best cup of joe! @javawithjan”

Case Study No. 2 Questions Is SA's social media post permissible? Is it okay to include @javawithjan? What if during SA's next visit, Jan thanks her for the shout out and gives her a free cup of coffee? Official Interpretation 04/20/2015 Opinion interp. Official Interpretation Student-Athlete Providing Opinions on a Commercial Product or Service (I) Division: I Date Issued: April 16, 2015 Date Published: April 20, 2015 Item Ref:  1 Interpretation: The committee confirmed that a student-athlete may provide an opinion about a commercial product or service, as long as no individual associated in any manner with the commercial product or service is involved in directing the student-athlete to issue the opinion, and the student-athlete does not receive any benefits from any source in conjunction with his or her opinion.

Case Study No. 3 Facts Greg, a cross country student-athlete, informed the compliance office that he had participated in an advertisement while in high-school. Greg’s entire high school team was selected to appear in a laundry company's stain stick commercial. He did not receive any payment for participating in the commercial. 12.5.2.1 only applies once individual enrolls at NCAA institution.

Case Study No. 3 Questions Has Greg jeopardized his eligibility to participate in athletics at an NCAA Division I institution? What if Greg received actual and necessary expenses for appearing in the commercial? What if Greg received compensation above actual and necessary expenses for participating in the commercial? Are there any concerns if the commercial continues to air after Greg enrolls at a Division I institution? Staff interpretations 10/14/88 and 10/25/89 No compensation because athletics involvement.

Institutional, Charitable, Education Or Nonprofit Promotions Member institution or conference. Recognized institutional entity. Noninstitutional charity. Noninstitutional educational entity. Nonprofit agency. Bylaw 12.5.1.1 Just talked about concerns with using SA for promotional purposes; however, legislation does not permit use of SA in limited situations. First piece is that it has to be a permissible entity. What is a permissible entity. For most part, all are not-for-profit or educational entities.

Institutional, Charitable, Education Or Nonprofit Promotions (cont.) Use of SA's name, picture or appearance to support: Charitable or educational activities; or Activities considered incidental to SA's participation in intercollegiate athletics. Parameters: Participation subject to limitations set forth in Bylaw 17. Only permissible sponsorship is sponsoring company's officially registered regular trademark or logo. May include emblem, name, address and telephone number. Bylaw 12.5.1.1 Recent proposal that eliminated requirement to get permission from AD. Strict limitation only one officially registered trademark or logo.

Institutional, Charitable, Education Or Nonprofit Promotions (cont.) Parameters: No reproduction of product if commercial entity's trademark or logo appears in promotion. SA may not miss class. All moneys go directly to institution, conference or other permissible entity. SA may accept actual and necessary expenses. Name, picture or appearance may not be used to promote commercial ventures of nonprofit agency. Bylaw 12.5.1.1 What are actual and necessary expenses? Previously approved waiver for missed class time.

Institutional, Charitable, Education Or Nonprofit Promotions (cont.) Parameters: Restrictions on the sale of commercial items. Noninformational items that include a single SA may not be sold. Noninformational items that include multiple SAs may be sold. Institutionally controlled outlets or outlets controlled by other permissible entity. SA and authorized representative of permissible entity affirm proper use of likeness or appearance. Bylaw 12.5.1.1 Sell a t-shirt with a single SA not OK but OK if there are multiple SAs t-shirt. But can give away t-shirt with single SA. Proposal No. 2015-33

Case Study No. 4 Facts Institution wants to promote its involvement with a food pantry. At the institution's soccer contest, all fans are asked to bring a canned or boxed food item. Institution will use multiple soccer SAs in its promotional materials. Assume food pantry is nonprofit.

Case Study No. 4 Questions What guidelines must the institution follow for printed promotional materials? For digital promotional materials (i.e., social media)? What if the local restaurant, a long-time sponsor of the institution, wants to get involved? What can the local restaurant do to promote the institution's event? What does it mean to be a cosponsor of the event? 12.5.1.1 applies regardless of medium.

Co-sponsorship Commercial establishment advertises the presence of SAs at the commercial location; or Is involved directly or indirectly in promoting the activity. Commercial establishment likes or retweets institution's promotion. Bylaw 12.5.1.1.2

Case Study No. 4 Facts Cindy, a soccer PSA who signed an NLI with the institution and will enroll during the spring, has volunteered with the food pantry the past five years. Can she be involved in the institution's promotional activity? The local restaurant's promotional activity? Is a 13 component. PSAs not subject to 12.5.1.1 but suggest treating similar to SAs; contact legal counsel about use.

Proposal No. 2005-26 Commercial Co-sponsorship Alternative to subparts (b) and (c) of Bylaw 12.5.1.1. Co-sponsorship and reproduction of a product. Promotion must include affiliation of the commercial entity and the permissible entity. Twenty-five percent limitation for commercial sponsors. Product or service; and Logo/trademark. No direct endorsement or encouragement of the use or purchase of commercial product or service. Allows more flexibility in the use cosponsorships by allowing 25% instead of just one. Also says if you use 2005-26, must have affiliation language. Can we intermingle 12.5.1.1-(b) and 2005-26? For example, 2005-26 doesn’t require use of registered trademark/logo so if we use something other than the registered trademark, does it have to include affiliation language. During its August 2005 meeting, the NCAA Division I Board of Directors approved the use of the new conditions set forth in Proposal No. 2005-26 and provided the Division I membership with the authority to apply such conditions until such time as the issues related to use of the student-athlete’s name, picture, and appearance in permissible promotional activities were resolved. The proposal eventually was withdrawn and a Special Committee regarding the Use of Student-Athletes in Commercial Activities was established to continue to study the issues and make recommendations for consideration by the Division I membership. That review resulted in the Proposal No. 2010-26 (as amended), which eventually was tabled by the Division I membership and defeated as a result of the sunset provision (lack of action after a year). Since the issues related to the use of student-athletes names and likenesses in commercial activities remain outstanding, the Board’s directive issued in August 2005 has remained in effect. The Board’s directive is captured in its August 2005 report and Proposal No. 2005-26 can be found on LSDBi. The academic and membership affairs staff has continued to make reference to the directive when providing educational assistance to the Division I membership. 

Case Study No. 5 Facts Same facts as Case Study No. 4. Institution wants to promote its involvement with a food pantry. At the institution's soccer contest, all fans are asked to bring a canned or boxed food item. Institution will use multiple soccer SAs in its promotional materials.

Case Study No. 5 Questions What additional flexibility does NCAA Proposal No. 2005-26 provide? What remains the same between Bylaw 12.5.1.1 and 2005-26? How does the institution know which to use? Focus on part (b) – multiple logos and can use product. If just using single logo, can use 12.5.1.1 but if want to use multiple logos or product then use 2005-26. Still no direct endorsement of product under 2005-26, so SA couldn’t be holding product.

Bylaw 12.5.1.1-(b) and (c) Proposal No. 2005-26 Only officially registered regular trademark/logo. Company's emblem, name, address, telephone number and website address may be included with the trademark or logo. Personal names, messages and slogans (other than an officially registered trademark) prohibited. No reproduction of product. Multiple trademarks/logos. May include reproduction of product. May not exceed 25 percent of total promotional activity. Must include affiliation language. Language or action may not directly encourage use or purchase of commercial product.

Case Study No. 6 Facts Marsha would like to be involved with a nonprofit that sells socks. Nonprofit donates all proceeds from its sales to another nonprofit. Nonprofit wants to use Marsha’s name and appearance in promotional activities. Marsha will also sell socks through her social media. Case study attempts to tease out difference between 12.4 and 12.5.1.1. If going to sell socks, can’t be in 12.5.1.1 (has to be 12.4 because now employed). If not selling socks, then can be 12.5.1.1.

Case Study No. 6 Questions Is it permissible for Marsha to be involved with the nonprofit? Is it permissible for her to sell socks for the nonprofit? What if the nonprofit becomes a for-profit entity but still donates all of its proceeds from the sale of socks to another nonprofit? If a for-profit, can’t be 12.5.1.1. Has to be 12.4.

Self-Employment Promotion Of Personal Business SA may establish own business provided SA's likeness is not used to promote the business. SA's nonprofit falls under self-employment legislation. Pseudonym may be used in promotion of business and sale of own product. Bylaw 12.4.4 Previously approved waiver?

Promotion Of Personal Business Waivers Promotion of personal vs. employer's business. SA's own product or service. Independent contractor. Use by commercial employers. Bylaws 12.4.4 and 12.5.2.1 Previously approved waiver Photographer -books Clothing line (not sport specific) yoga wear vs golf wear Arbonne, mary kay (private “Mascara is great” vs public- informational – “I sell arbonne”); still needs to be nonathletically related McD’s Flex on ambassor programs

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