Published on 
November 24, 2021

What college athletes and brands should know about NCAA regulations and NIL with Darren Heitner

We sat down with Darren Heitner, founder of HEITNERLEGAL - a sports and contract law firm, and author of How to Play the Game: What Every Sports Attorney Needs to Know. As one of the most respected sports law professionals, Darren Heitner has great, first-hand insight into the recent change in NCAA rules regarding athletes’ ability to earn money for their name, image, and likeness. Heitner breaks down NCAA’s past NIL regulations, the current state of student-athletes ability to profit off their NIL, and how college athletes and brands should take advantage of this new opportunity.  

You can listen to the episode here: 

Highlights from the episode: 

Darren shares his thoughts on the following topics…

The beginning stages towards changing NCAA rules regarding NIL: [10:33]

“I was asked back in September 2019 to assist in the creation and promotion of legislation in the state of Florida, by the representative who governs my specific district representative Chip LaMarca. He had seen what was happening in California at the time, which was, you know, the golden state decided to be the first to pass legislation effectively prohibiting the NCAA from enforcing its restrictive measures that prevented college athletes in that state from benefiting from their names, images, and likenesses, effectively preventing them from making money outside of a salary from their teams, which they still can't do. But it was very important because, to be honest, these are athletes that never should have had their rights taken away from them. Literally, everyone else in the country has these rights of publicity. And so one of the first things we looked at was there a justification for California who was absolutely a leader in this space, going back to 2019, was there a justification for California to decide we're going to pass this law, but not make it effective until four years later, their law did not go into effect at the time of passing until July 2023. And we said to ourselves, ‘If we believe these are rights that should never have been taken away from athletes, why wait, who are we doing a favor for?’ So we determined that there should not be a gap. In fact, when we first put together legislation, we wanted it to go live on July 1st, 2020….Ultimately, we became the first state to allow name, image and likeness rights for college athletes as of July 1st, 2021”

How are athletes actually taking advantage of being able to profit from NIL today : [17:37]

“We have athletes creating their own businesses. They're endorsing brands that are selling products and services. They're selling memorabilia and doing autograph signings. They are creating NFTs, nonfungible tokens, and selling those. They're performing at camps and clinics for youth where there's an entry fee to participate in. Being philanthropic and raising money for charity, which used to be scrutinized even by the NCAA...the opportunities are limitless...We're seeing males, we're seeing females, we're seeing division one, division two, division three. Everyone has an opportunity now that they didn't have before.”

A shift in college athletes decision making when it comes to picking a school or planning their future: [25:29]

“I mean, we are only four and a half months in, but I do think athletes are going to absolutely consider NIL when they are factoring in the various attributes of the schools, in which they may have an invitation to it. I think many athletes are considering themselves to be business people much earlier in their lives than before, which is a great thing in my estimation. I think that they're much more cautious about the type of content that they're publishing on various social media etc., because now they are their own brands...I think there are vast changes for college athletes and, and certainly a lot of athletes who will never go pro or who may have pro potential but suffer a devastating injury or for whatever reason don't end up having the opportunity that they predicted...Think of Bryce Young, who's currently the quarterback at Alabama, who's made seven figures. Now, if he suffers an injury, at least he's got some money. He's made some money in his collegiate career.”

Brands have a unique opportunity: [32:01]

“There's great ambushing opportunities for brands that have been prevented from associating with specific schools. As an example - University of Florida, Pepsi, and Gatorade had been a parcel of the University of Florida forever. I mean, Gatorade was created on the grounds of the University of Florida. What prevents Body Armor, which was just purchased by Coca-Cola or any other competing brand from trying to ambush that amazing long-standing relationship between the university and that brand by going directly to the athletes, as long as the athletes, again, aren't agreeing to terms that conflict with the terms by, in between Pepsi and the University of Florida….I think there's unique opportunities now to disrupt a space that has largely remained quite static, where relationships oftentimes don't get interfered with.”

Full Transcript: 

David Tintner: All right. We are here today with Darren Heitner the founder of Heitner legal. What's up there and how's it going? I'm doing well. How are you doing great. One of the things I'm most excited to talk to you about today. is really the fact that you have been involved in the business of content or brand deals, for as long as I've known you, which is actually a really long time and you were doing this before, there was even a name for what's going on today in the content industry.

So what I would love for you to do Darren is just kind of give us your entry point or how you got into. [00:01:00] Doing what you're doing today. Cause you go way back on it 

Darren Heitner: Well, I think it's really interesting and you and I have known each other probably 15 to 20 years now, which is kind of crazy and it's great to be touching base again, even across borders and across oceans.

You hit on something content and there's been a phrase that I think a lot of people refer to quite often without even really thinking about it, which is that content is king. And I truly treated it as such. I mean, as far as long as we've known each other, I've been a firm believer in trying to remain relevant, constantly pushing out new content and not necessarily focusing on how to monetize that specific piece of content, but perhaps realizing throughout that there's all these ancillary benefits of remaining relevant of providing value to others.

Even if you're not receiving any sort of direct revenue from that [00:02:00] content that you're creating and disseminating. I probably got involved in the creation of content and promotion back when I was an undergrad at university of Florida with you. And just promoting nightlife and having people going out to clubs.

I mean, a lot of that was actually the creation of persuasive content in order to try to get people excited and motivated to just go out to a specific location at night. And it evolved, it evolved into areas that I was truly passionate about, such as sports business, sports, marketing law, and sports law, and think about free platforms that have.

Erupted within the past decade or so like Twitter, Facebook, Instagram, now, Tik TOK. And I'm sure there'll be others. People don't really take advantage of the unique opportunities that are right in front of us that did not exist more than a decade ago. And the fact that they are just free mediums for us to [00:03:00] provide our ideas, our theories, to provide opinions on important subjects of the day.

And so I think certainly content the creation of new, interesting content, and always putting your feet in the shoes of the consumer, think about what it is that they would find interesting, what they may crave. And also, what is it that you're either an expert on, or you want to be an expert on and focus on harnessing your capacity in that specific space without overextending yourself?

I mean, there's a lot of things. I think that go into a strategy of creating and disseminating effective content. And I've certainly been fortunate if not sometimes lucky to be able to grow my brand by focusing on what a lot of my audience craves. 

David Tintner: I think something you did at least from an outsider watching, it was, it always seemed like you had this like a strategy or plan.

You, you started with a sports agent blog. [00:04:00] And, and I believe that was when we were in college. He 

Darren Heitner: found that that right. I created sports agent blog as a new year's resolution, December 31st, 2005. So it was my junior year while we were in college. Yes. 

David Tintner: So when you created that, I mean, you brought up a great point.

You said you should think about what you're an expert on and also what you want to be an expert on. And I think a lot of what you did there was kind of. Gave yourself an outlet to both share what you were learning and also learn from sharing. And, and at least from it for an outsider kind of watching that, it really felt like you had this like a strategy or a plan that you were going to be, you know, Jerry Maguire from the beginning.

Was it really like that, that you had, you know, this clear cut plan? 

Darren Heitner: Well, yes, the answer is absolutely. Sports agent blog, wasn't sports agent blog on December 31st, 2005. It was called I want to be a sports agent. So I [00:05:00] think that answers your question succinctly. And it was actually a sub page on the website I was using to promote nightlife at that time.

 I shifted my focus from what was absolutely paying the bills and what I found to be fun. To what I really was looking to accomplish long-term, which at the time was to become a sports agent. And so, as you also referenced, it was not just about at the time, me creating content and being a thought leader.

For others. I use this as a vehicle to meet many people within the sports agent industry so that I could increase and grow by Rolodex. So I could challenge myself to learn more. And what I did was I created very early on a column called interview with the agent and that allowed me to go and reach out to established agents and say, Hey, this is a column I'm running.

Would you be willing to sit for an interview? That we would publish on the blog. Didn't get [00:06:00] out to those who are reading the website. It allowed them to learn about the website if they hadn't already know that it existed. And then help. As I mentioned, expand my connections in the space, which served to be extremely valuable over time and starting a website like sports agent blog led to forms without solicitation.

I think it was 2012. Six seven years after creating sports agent blog, reaching out to me saying that there were some fans in the editorial department and asking me to start writing there in the sports business section, which was gigantic in, in launching my career 

and then writing it out, kick and above the law. And so it sort of snowballed and introduced me to writing on various platforms just today. Writing something on LinkedIn, where now I'm a quote unquote creators. So they promote my content there and it goes to show you, you don't [00:07:00] necessarily need the traditional models like a Forbes to get your word out.

Now you can actually harness the power on some of these social media. Platforms and just go directly to consumer. 

David Tintner: And just to prove the point that you were always thinking about publicity and how to get it from a, from a very smart angle, your LinkedIn URL is sports agent. I mean genius 

Darren Heitner: it may surprise some of your listeners after hearing the intro to this podcast after. Creating sports agent blog after creating my own sports agency I decided in 2011 that I was going to focus on law and stop being a sports agent. Yet I maintained that sports agent, LinkedIn profile URL, which has constantly confused people over the years, but I guess it's an ice breaker from time to time.

I still, even a decade after. Halting being a sports agent have to correct people because they just assume that someone who combined sports and [00:08:00] law must be an agent and that's not necessarily true. Okay. 

David Tintner: So explain exactly what you're doing today. With Heitner legal. I mean, you're still there.

You're, you're not a sports agent anymore, but you're still very involved 

Darren Heitner: That's right. I am my law firm has a very focused niche on sports and entertainment related work. Now it's not the only thing that we do. We do not only cater to athletes and entertainers, but I positioned my law firm in a way where hopefully if there is an athlete or entertainer looking for legal services, We are top of mind.

And obviously that didn't happen overnight. That's been something that's been built up for over a decade. The types of work that we do traditionally are transactional work. We do intellectual property protection and enforcement like trademarks copyrights, right? A publicity trade secrets. We do a lot of litigation and arbitration in the civil space.

Spear. In fact, I recently I've been named the AAA American [00:09:00] arbitration association. Arbitrator which I'm looking forward to serving more in that capacity in the future, but that's really the crux of what we do at Heitner legal. And as I mentioned, we do service a lot of athletes, a lot of entertainers and a lot of sports agents.

And so going back to your question, you know, there's a distinction between being a lawyer and a sports agent, the main distinction being I'm not certified by any of the major players associated. I'm not negotiating the team contracts for the players. I leave there to the domain of the sports agents and they don't want to compete with them because they're great clients.

What do I do? Pretty much everything else when it comes to a legal, from a legal standpoint. 

David Tintner: So let's talk about that in, in 2019, I believe you were asked to help craft the NIL legislation, which has recently come into law. And that I guess falls under, as you mentioned, you're doing everything [00:10:00] else kind of related to to this, except for, you know, signing, signing the deals.

So you were someone who was positioned pretty well to be able to help craft this legislation. What was that process like? 

Darren Heitner: It was emotionally and time consuming, but extremely rewarding. I was asked back in September, 2019. To assist in the creation and promotion of legislation in the state of Florida, by the representative who governs my specific district representative chip LaMarca.

He had seen what was happening in California at the time, which was, you know, the golden state decided to be the first to pass legislation effectively prohibiting the NCAA from enforcing its restrictive measures. That prevented college athletes in that state from benefiting from their names, images, and likenesses effectively preventing them from making money outside of a salary from [00:11:00] their teams, which they still can't do.

But it was very important because to be honest, these are athletes that never should have had their rights taken away from them. Literally, everyone else in the country has these rights of publicity. And so one of the first things we looked at was. Was there a justification for California who was absolutely a leader in this space, going back to 2019, was there a justification for California to decide we're going to pass this law, but not make it effective until four years later, their law did not go into effect at the time of passing until July, 2023.

And we said to ourselves, If we believe these are rights that should never have been taken away from athletes. Why wait, who are we doing a favor for? It seems as though it would be for the NCAA and why. And so we determined that there should not be a gap. In fact, [00:12:00] when we first put together a legislation, we wanted it to go live July 1st, 2020.

Now hindsight being 2020. Maybe it was a good thing that it didn't go into effect then, because we hadn't known at the time that the world would be shaken by the coronavirus pandemic, but also at the same time, maybe it would have been a good thing for athletes to have the capacity to make money. While the, their seasons were in flux.

Anyhow, ultimately we became the first state to allow name, image and likeness rights for college athletes. As of July 1st, 2021, many other states followed. And the NCAA on June 30th of this year decided to implement what it calls an interim NIL policy that at least for the time being blocks their prior prohibition.

And so that's why college athletes across the country can now 

benefit 

Darren Heitner: There's nothing typical when it comes to the NCAA this is actually very atypical. It's very rare for states to take any [00:13:00] action on college sports policy. However, what may be a bit more common is that when a multitude of states start proposing and adopting legislation, What, and when that legislation varies state to state, what you'll commonly find is that the federal government intervenes, and yet we've had over 25 states that have passed legislation on name, image, and likeness.

The federal government has had no. Lack of proposals. You've had numerous congressmen and women attach their names to propose legislation on this subject. I think we're nearing 10 different bills. None of them have gotten out of committee. Everyone wants to take credit for it. And what was a very middle of the road, bipartisan or nonpartisan issue state by state has somehow become very political on Capitol Hill

and Congress hasn't been able to pass anything on the national level, which is why right now you see for the states that have passed legislation and not all of them have, [00:14:00] some are just operating. The schools are operating under the NCAA's temporary interim policy and their respective school policies.

But in the states that have laws, they vary and some would suggest that the federal government should intervene. The NCAA would even like it. At one point in time, I think many believed that could happen in the foreseeable future. Now, no one knows 

David Tintner: doesn't have a set expiration 

Darren Heitner: date on it or it's a, it does not.

Okay. Until further notice that in fact I'll interject briefly, the NCAA has a constitutional convention. And recently proposed a new constitution. I think that would more permanently established rights from the NCAA level. But that still needs to be voted on. 

David Tintner: So who are 

Darren Heitner: the sides here 

David Tintner: in this kind of in this issue?

Darren Heitner: You know, I don't know that there's necessarily sides anymore at this point. I suppose you [00:15:00] could say the NCAA's on one side where they are very reluctant to change and only alter their rules if, if pushed. And we'll wait until the bitter end in order to do anything, which is there's proof there with regard to NIL

and they also want a reduction of exposure they're concerned. About pending litigation that goes to their past practices of preventing college athletes from enjoying their name, image and likeness rights. And they're concerned about future litigation. If there's any restrictions that may be in place.

On the other hand, you know, you had athletes, you have the states and really the federal government at this point, that all believes these are rights that never should have been taken away from the athletes. And so you've seen. A lot of movement in a short amount of time, if you have any appreciation for how politics work, I mean, states really moved very quickly on this.

Yeah. It 

David Tintner: definitely feels like something that kind of came out of, you know, almost out of nowhere [00:16:00] and changed overnight in terms of what you would expect to have happened for these types of organizations. 

Darren Heitner: Well, the NCAA has no excuse for sitting on its hands. It's known. This was coming for quite some time. You can go back to ed O'Bannon, who sued the NCAA years ago based on use of name, image, and likeness. And then you could look at the pending Supreme court case that was decided earlier this year, Austin BNCA where the NCAA lost unanimous decision nine zero.

And justice Kavanaugh even came out in his concurring opinion, asked me whether any restraints implemented by the NCAA are justifiable. But the premise of the overall case was based on restrictions related to academic related benefits. But the NCAA at least at a minimum, knew that Florida was going live for over a year.

You had the Florida legislature passed its legislation. I believe it was March of 2020, and then governor [00:17:00] Ron DeSantis signed it into law in June, 2020. So it thought about what to do for quite some time. In fact, the NCAA came up with its own legislation that it proposed, it was supposed to vote on it. It punted on it probably wisely because ultimately there was this heavy handed Supreme court decision that probably would have made them adjust anyway But the NCAA has no excuses here.

I mean, it could have very easily just implemented an interim NIL policy back in June, 2020, when governor, Ron DeSantis signed his name to the legislation in Florida. 

David Tintner: So what does it mean now in practice that players are able to use their name, image and likeness 

how are they actually 

Darren Heitner: taking advantage of this today? In a multitude of ways, we have athletes creating their own businesses. They're endorsing brands that are selling products and services. They're selling memorabilia and doing [00:18:00] autograph signings. They are creating NFTs, non fungible tokens, and selling those.

They're performing at camps and clinics for youth where there's an entry fee to participate in. Being philanthropic and raising money for charity, which used to be scrutinized even by the NCA. I mean, I can go on and on it, the opportunities are limitless. We're seeing athletes and revenue producing sports and non-revenue producing sports.

You're seeing males, we're seeing females, we're seeing division one division two division three. Everyone has an opportunity now that they didn't have before. And yes, there's absolutely disparity in terms of the revenue that will be earned, but they have equality and opportunity and that's, what's very exciting to me.

And that always puts a smile on my face. 

David Tintner: And what does it mean for the universities now that the athletes are [00:19:00] able to do to do this? What's changed from their side. Well, 

Darren Heitner: they've had to adjust. They, you know, this was a new world for them from a compliance standpoint, they want to make sure that they're doing everything in accordance with the NCA regulations and accordance with their state laws that they're already in place.

It's also becoming a major recruiting tool. Now add this to, you know, the existing. Happy recruiting efforts, which included promoting the coach and promoting the athletic facilities and the history and record of the universities. Now it's about, you know, what, what resources are the universities providing for NISL and for branding and what deals have been done for the current class of students and what should be expected for future classes?

It's really it's changed. 

David Tintner: It's really cool to think about. I know one of the things that we think about thought leaders a lot when it comes to purchasing sponsorships [00:20:00] on YouTube or doing brand deals and content is repetition. If a brand is continuing to go back to the same creative and buy something over and over, then it tends to be a sign succeeding with that creator.

And I think if you start looking at that on the university, Right. If you start seeing like a brand is always doing deals with the quarterback of, of this school, you know? Okay. The quarterback has changed over time, but brands going back and it didn't even do it. 

That's a sign for recruits that, oh man, if I go to the school, you know, I have Nike waiting for me or whatever that brand is. Are we seeing things like that yet? Or is it really still player by player 

Darren Heitner: Well, it has to be to an extent player by player because these offers can't be contingent on a player, attending a university.

It's one of the few regulations that the NCAA has put in place, which is that deals can't be contingent on [00:21:00] enrollment or staying at a school. And so if a brand is saying overtly, we're putting this offer out for. All future quarterbacks at the university of Florida that could pose a problem, I suppose, less so than actually saying to a recruit.

If you go to USF, then you get this deal. But that's, that's really what the NCA wants to avoid is there's sort of theory that there's improper inducements that could cause a player to enroll at a university and completely shift the balance of. With regard to recruiting, 

David Tintner: even if it's not overtly said, I imagine that brands are evaluating these types of deals similar to the way that they would evaluate any, any kind of content sponsorship or creator deal that the, that the engagement that they're going to get from it, or, or the viewership, the audience that they're gonna pick up from

Darren Heitner: Well, I think what you find is that various [00:22:00] brands and individuals who are operating in playing in this space right now, they have a different motives for getting involved. Certainly the traditional brand, doing sponsorship and getting an endorsement is going to look very strictly at the return on investment and look at any sort of metrics and analyses that will assist.

And understanding what the value is here, what the compensation should be and whether or not there's actual value here to engage in the type of opportunity. And I certainly, even the first four plus months had been involved in campaigns where I know the brands have asked for those metrics, let's say, after a post or multiple posts on Instagram or on Tik TOK, they want to see the number of eyeballs, the amount of engagement.

The number of impressions, the amount of comments, et cetera. So and, and those are our standard data points in this social media world that we live in. I'd say a lot of the, the deliverables have focused on [00:23:00] social media thus far, but, but not exclusively, but, but yes, to your point, that traditional brands who are getting into this for traditional reasons, absolutely want to best document the return on 

investment 

David Tintner: do you know or are you aware of what tools they're using to track return on investment or methods? 

Darren Heitner: I think they're low from what I've seen. They're largely relying, let's say with regard to social media, they're relying on a deliverable from the athlete to go into his or her. Back end, which an Instagram, a tick talk, et cetera, will provide to the athlete to see what the stats are and then provide them on a timely basis to the brand.

So the brand is making that part of the obligations of the athlete. Okay. Okay. 

David Tintner: So, so it sounds like the all of a sudden has a pretty serious amount of work that they need to be doing, right? It's not, it's not just People aren't just throwing money at them with nothing in return here. They need to actually deliver something and show that [00:24:00] this money is going to create some value for 

Darren Heitner: the brand.

Like if you're getting paid $50,000 to endorse a brand on Instagram and Tik TOK, I think it's the least you can do as an athlete. And it's really not asking for all that much. And, and I say that as an athlete advocate, but I think that type of deliverable makes perfect sense and it's, it's really not asking much from them.

David Tintner: Well, I guess what I'm getting at is kind of, are they hiring a social media manager? 

Darren Heitner: The answer's yes. I mean like there's over 400,000. College athletes.

So the vast majority are not, but the high profile athletes are certainly creating these types of management teams that you referenced. And sometimes that includes an actual manager. Other times it also includes an agent who's out there pounding the pavement procuring opportunities. Oftentimes it'll include a lawyer such as myself to review and revise contracts and ensure that the athletes are completely protected.

Also from an intellectual property [00:25:00] standpoint many are seeking the advice of accountants and financial planners to ensure that they're not squandering their assets and also preparing for taxes that they're going to have to be paying for the first time. So the hope is that those with the biggest opportunities absolutely are crafting.

Business teams to surround them and provide them with proper advice and also basically serving as checks and balances to each other and making sure that the respective service providers are appropriately doing their jobs. 

David Tintner: Let's say the career prospects as an athlete, has it maybe changed them from thinking that I need to make it to professional level in order to become rich, or I need to go to this school in order to get on this time.

We've seen stuff shift in that decision making 

Darren Heitner: we're early stages. I think it's very hard to tell. I mean, we are only four and a half months in, I do think athletes are going to absolutely consider NISL when they are factoring in the various [00:26:00] attributes of the schools, in which they may have an invitation to it.

I think many athletes are, are considering themselves to be business people much earlier in their lives than before, which is a great thing in my estimation. I think that they're much more cautious about the type of content that they're publishing on various social media, et cetera, because now they are their own brands and, and a lot of these contracts, obviously there will be opportunities for brands that they're doing deals with to escape.

Compensation obligations. If they do anything that could tarnish the reputation of the brand. So you know, all those things considered, I think there there's vast changes for college athletes and, and certainly a lot of athletes who will never go pro or who may have pro potential, but suffer a devastating injury or for whatever reason.

Don't end up having the opportunity that they predicted and those who surround them predict. And so I think that's another great thing. Think of the Miami [00:27:00] dolphins, quarterback to attack the LOA who suffered a terrible injury at Alabama when he was in college, there were, there was talk at the time that he'd never be a professional athlete.

Well, he wouldn't have been able to benefit need to. He couldn't benefit while he was in college at Alabama. That consider Bryce young. Who's currently the quarterback at Alabama. Who's made seven figures. Now, if he suffers an injury, at least he's got some money. He's made some money in his collegiate career.

And you know, again, I don't think that's a, that's something that should have ever been taken away from these college athletes. 

David Tintner: I wonder if it also keeps college athletes in college longer 

Darren Heitner: I think the athletes with the biggest pro potential will still leave early. Largely based on what I just mentioned, which is there's this, this potential, this real potential for devastating injury that can affect draft status.

You know, also if you're projected to go high and you perform poorly the next year, [00:28:00] you could negatively impact your draft position. Okay. Despite the money that you're making on at ill, it probably pales in comparison to the guaranteed dollars. You'll get, if you get drafted high up, plus you'll still have those.

And I all opportunities as a professional athlete, many professional athletes do marketing deals and I've been fortunate to help many of them with that. But yeah, I, I think where you'll see change perhaps is, you know, that mid to late round projected after. Maybe sticks around another year, knowing that there's also that potential to make some money off the field

David Tintner: are there any limitations on the brands that a college athlete can work with in relation to, for example let's say the university has an, a major sponsor. Can the athlete go and get sponsored by the direct competitor of the University sponsor? 

Darren Heitner: You know, you really have to look state by state school, by school. As I mentioned before, not all states [00:29:00] have an IO laws in place.

And then those that do vary, depending on what's said within those laws, some states say that you cannot have a deal that, that confect competes with a brand that competes with a brand that's where the university, others like Florida say you can, but the terms of the contract. Can't conflict. So for instance, university of Florida being a Jordan brand school and athlete can do a deal with Adidas or Puma, but Puma or Adidas can't require the athlete to wear that apparel or shoes on the court, on the field, where there is a deal in place with Jordan brand and the school.

You know, in other states you have like Texas has outlawed a variety of different types of deals like with tobacco company. With adult entertainment companies with gambling companies, whereas other states, again, if they have no log place or silent, you'd look to this school specific policy you know, take, for [00:30:00] example, Florida FAU, the quarterback in COSI Perry.

He signed a deal with a beer company. Well, he's over the age of 21. No, no, no issue there. So you really have to look specifically state by state school. 

David Tintner: Yeah, it's really interesting as we think about, I'm really thinking about doing digital marketing today and how that can potentially be applied to, to name, image and likeness now, NCA, and I'm thinking that's a, one of the strategies that's really common in digital marketing is like stealing your competitor's keywords, right.

Or, or looking into their strategy and like taking them. That's working for them, right. They've already wasted their money on finding the failing stuff and, you know, once they start finding something that's good. So I'm wondering if brands are looking at ways that they can get into opportunities that were previously closed to them before because of the competition got there first or or, you know, doors just weren't open to them before and they can get in through player.

Darren Heitner: Well speaking with a lot of big brands. And again, remember we're only four and a [00:31:00] half months saying that a lot of big brands have sort of sat on the sidelines intentionally because they sort of wanted to see what the waters look like before they jumped in head first. And so, you know, to, to your point, do let some of the others do the dirty work.

And then take advantage of the research that you can do to see what are the best practices and what doesn't work. And I think a lot of big brands decided they were going to take that sort of strategy going in. And we'll still see many of those big brands get involved in an IOL because there's immense opportunities.

But they just kind of wanted to take a wait and see approach. 

David Tintner: Although it does feel to me like the big brands. I mean, they have the budgets and they've already been involved in college sports. Directly with a player. So it feels like the opportunity for that I, that I seek for is more for the challenger brands budgets before to get involved in college sports and know, maybe can get in with a second tier player and suddenly, you know, they're, they're getting some FaceTime that they didn't have before, or [00:32:00] even an 

Darren Heitner: option of it.

There's great ambushing opportunities for brands that have been prevented from associating. Specific schools. I mean, take, for instance, I love using university of Florida as example because obviously it's a school I know very well. Let's use another brain. Pepsi, Pepsi, and Gatorade had been a part and parcel of university of Florida forever.

I mean, Gatorade was created on the grounds of the university of Florida. What prevents body armor, which was just purchased by Coke Coca-Cola or any other competing brands. From trying to ambush that amazing long-standing relationship by, in between the university and that brand by going directly to the athletes, as long as the athletes, again, aren't agreeing to terms that conflict with the terms by, in between Pepsi and the university of Florida.

And that's just one example. I think there are examples of bout of instances where across the country, innovative brands that are willing to [00:33:00] push the envelope and willing to take the backlash, because obviously. That comes with being an ambusher, but I think there's unique opportunities now to disrupt a space that has largely remained quite static, where relationships oftentimes don't get interfered 

David Tintner: with.

What do you see are some of the typical deal structures that brands are doing with athletes? Is it, are there like one-off deals for a single week? Is it for season? 

Darren Heitner: it varies. I mean, we've, I've done a lot of one-offs where, you know, one post on social media in exchange for X amount of dollars, I've done multiple year deals.

I just did a deal for Anthony Richardson, a quarterback at university of Florida, where we guaranteed him a car to use until the end of the 2023 calendar. And he gets to swap in that car every three to six months throughout the term of that relationship. So it [00:34:00] varies. I mean, it allows athletes, their representatives and brands to be as creative as they wish, as long as they remain within the confines of the laws that exist.

David Tintner: Because one of the things I would imagine is you let's say you do a deal with someone at the beginning of the season. You don't know. Obviously how that's going to play out both on the personal level, rather than they're going to get injured or they're not going to play well. And also on the team level, or are they going to make it to a high profile bowl or are they going to, you know, fizzle out so I'm wondering how much brands are kind of willing to take these bets if you will.

Darren Heitner: Well, they seem to be willing to do it so far. And you know, the one criticism that I've seen from some people in the business is, oh, look at Spencer rattler. There got the quarterback who was initially the starter in Oklahoma at the beginning of the year and lost his job, or look at Derek king, the quarterback at Miami who got into.

And also lost his job or you know, there's, [00:35:00] there's countless examples. DJ, the quarterback at Clemson and Clemson was supposed to be in the national championship again this year and they probably will come far from it. But at the same time, I'm sure brands have earned a lot in terms of. The impressions, even after these athletes were no longer playing, because it's just because so many people were talking about them.

And one of the constraints that has been put in place by the NCA outside of that whole improper inducement to enroll at a university is you can't pay the consideration from a brand to an athlete. Can't be contingent on performance on athletic performance. So, so you can't put in a contract if the athletes no longer participating.

If he's benched, we're not paying him anymore, that's that's not allowed. So you know, it's a protection for the athletes. 

David Tintner: when you say performance third, does that does that eliminate any sort of deal that talks about, let's say like their actions on the field. If [00:36:00] you throw a touchdown, you get X.

Darren Heitner: Yeah. No, it can't be performance-based. Yeah, there can't be bonuses based on performance. 

David Tintner: that's one, that's something that's just like begging for people to find the loopholes and, 

Darren Heitner: Huh. I'm always looking for loopholes in everything. But you're right. I mean, yes.

Yes. People will be looking for loopholes without, at the same time. The last thing you want to do is jeopardize the player's eligibility.

David Tintner: You imagine the brand is looking for exposure, right. And you know, so much of exposure is, is, is based on their their actions. Right. And it doesn't necessarily have to be like I understand something like getting benched as you brought up or, or maybe winning, but there's like also micro-actions that, that are really important to exposure for that athlete and thus the brand.

Darren Heitner: Not a, as this can't be based or attached to athletic performance. Maybe you tied bonuses to [00:37:00] academic performance. I mean, you can tie bonuses to other things. It just can't be based on your athletic performance. 

David Tintner: So, so what advice would you have to like a brand marketing team that you know, is just kind of hearing about this now and they know it's something hot, it's something new and they don't know.

Yeah. 

Darren Heitner: Well, I always say, in fact, this is something I put on my LinkedIn post today. I kind of gave a rundown of some of the thoughts that I have for athletes who are looking to get into the space. But this one thing would also be very important for brands, which is the absolute best deals are between athletes and brands, where the brand absolutely is interested in the athlete and not just his or her follower count.

And the athlete had there's authenticity there because the athlete either already uses the products and services of the bread or tries it out, gets an appreciation for it and becomes a power user of the brand. Those are the types of relationships that, I mean, it [00:38:00] just consumers see through the garbage consumers, understand when an athlete's getting paid to just promote a product that the athlete couldn't give any care

so I think that's really what's most important. Now, the other thing is it's, it's very difficult to have an appreciation as to what fair market value is on these deals. It's a brand new industry, so consult people in the note, consult agencies or agents or lawyers who have been in this space for a long time.

And don't feel as though this is something you have to do on your own. There is a lot of data out there, but it's privately. I mean, I have tons of contracts that I've worked on over 11 years, but no one has access to them other than me. And that's true for a lot of people in this industry. So for brands that want to get involved in this space, go to the people who actually have the documentation that you can rely upon for a better chance of success.

Your, your [00:39:00] reference points.

Aren't only with college athletes. Although we've started to do a lot of deals. You know, that database of documentation is growing by the day. And so comparisons can be made athlete to athlete based on the deliverables, the attributes, et cetera. It's not a perfect science either. I mean, everything's obviously negotiable.

And typically the biggest element to any of these deals is leverage and how badly the brand wants the athlete. But yeah, I, I wouldn't say that we're talking about only college athlete deals as a reference point for these negotiations. 

David Tintner: Do you think that deals that college athletes are doing with brands could surpass potentially deals with professional athletes would do.

In terms of Value at some point 

Darren Heitner: I don't think so on the mean you have over 400,000 college athletes, many of them will be doing very small scale deals. So for looking at the mean, or the median, [00:40:00] the answer's probably no in terms of total gross.

Yes. I think we're talking here about a billion dollar plus industry on an annualized basis. And as I mentioned, there's just so many athletes who are out there plus a lot of professional athletes, particularly outside of basketball, tend to not be very marketable. And that may surprise some people, especially baseball players and oftentimes football players, because their faces are covered and their whole bodies are covered too.

So in gross, yes.

David Tintner: It definitely feels like there's something here that they need to be paying attention to. But as you kind of mentioned, it's it's really early days.

And I imagine what we see throughout the rest of this year and into next. I could look really different than even what we see today. Any, any kind of last words or last advice you'd give on on the subject before we sign off here? 

Darren Heitner: Well, bottom line is we're in a better place today as a society.

And certainly that's true for the college athletes than we [00:41:00] were a year ago or even five months. And to all the people who said this would be the end of college sports, as we know it, or that chaos would ensue, they've been proven wrong, at least within the first five months, we've only seen more interest in college sports.

And that's largely because people are so interested in the individual and the individual's stories. And a lot of those stories are coming out through NIL. So I'm very happy with what I've seen in the. 

David Tintner: That's awesome. And I hope it continues and and definitely sounds promising. So thank you very, very much for joining us and we'll 

Darren Heitner: catch you later.

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