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State Journal beat reporter Colten Bartholomew and columnist Jim Polzin welcome on Marquette sports law professor Matt Mitten to discuss the changes in college sports related to name, image and likeness. Mitten breaks down the history of anti-trust challenges at the NCAA level, how we got to this point, what challenges lay ahead for schools and student-athletes and the unintended consequences that NIL could cause. Colten and Jim wrap up the show discussing the end of Barry Alvarez’s tenure at UW and breaking down a busy month of recruiting for the Badgers football team.

On his first day as the University of Wisconsin's athletic director, Chris McIntosh's department and the student-athletes he leads entered a new world Thursday.

College athletes are allowed to make money for their name, image and likeness (NIL), a marked shift in policy from the NCAA that was prompted by athletes’ lobbying and state legislatures creating laws that challenged NCAA rules. As the NCAA waits for Congress to draft and pass a federal law governing NIL, the organization’s temporary solution is to leave NIL policy up to its member schools.

UW’s policy follows many of the guidelines that the NCAA and Power Five Conferences have requested in a possible federal law, but McIntosh knows there’s still a lot to be discovered in the NIL age.

“I feel good about where our policy has landed,” McIntosh said.

“I mean, it's a temporary policy. By the very nature of the fact that it's temporary, we assume our policy is going to evolve. We assume that for a number of different reasons. There will be the learnings that both us as an institution and our student-athletes will experience that should be applied to the policy in the future. So then it evolves with our knowledge of what's actually happening in the marketplace.”

UW athletes have already begun cashing in, with a number of Badgers sending out social media ads for GoPuff — a delivery service for groceries and other essentials — and quarterback Graham Mertz debuting a line of T-shirts with 500Level.

With the initial policy set, let’s break down what Badgers student-athletes can and can’t do, and how involved UW will be:

WHAT THEY CAN DO

Badgers athletes will be allowed to identify themselves as such in their NIL pursuits, something that gives them more branding power as they engage with third-party companies. Athletes and/or companies they’re working with also are allowed to procure a licensing agreement with the university to use UW logos, slogans and trademarks in their NIL activities.

Athletes can also hire a business agent or attorney to help them navigate the NIL space. Any contract between an athlete and an agent has to end when an athlete exhausts college eligibility, keeping any business between an athlete pursuing a professional career and marketing opportunities as a professional separate.

In sports like hockey or baseball, collegiate athletes have been able to seek advisors before turning pro, and McIntosh believes having representation in the NIL space could be beneficial.

“For as much opportunity exists for our student-athletes, there's as much risk,” McIntosh said.

“Our student athletes, they'll be able to enter into contractual relationships on a number of fronts. We’re supportive of that, but we’re also supportive of them seeking sound advice and counsel outside of the athletic department to ensure that those relationships that they enter into … are healthy ones for them.”

All NIL contracts or agreements between athletes and third parties must be disclosed to the university. Athletes will fill out a form and return it to the university, and McIntosh said the compliance office, the career and leadership team, and UW brand communications office will be primarily responsible for reviewing those disclosures.

Athletes are responsible for all tax implications of NIL activities and for any financial ramifications of those activities.

NIL payments have to be for work or services actually performed, so a company can’t pay an athlete for a no-show job, and payments have to be at fair market value. Determining what fair market value is can be tricky, but UW’s definition in the policy says fair market value “can be determined by the price on which other buyers and sellers have agreed for a similar right, good, service or property.”

WHAT THEY CAN’T DO

As expected, there are a fair number of companies with which Badgers athletes can’t enter an NIL agreement. Athletes can’t endorse tobacco, gambling or any other product banned by the NCAA.

Other prohibited categories include sponsorships deemed to:

  • Negatively affect UW’s reputation
  • Create an endorsement by UW of a company, product, political candidate or position
  • Be obscene or contain profane material
  • Demean persons on basis of sex, race, sexual orientation and other categories.

NIL partnerships with alcohol companies aren’t expressly prohibited in UW’s policy, but they would have to be reviewed by the Vice Chancellor of University Relations, the same person who can allow or deny alcohol companies sponsoring other university entities.

Athletes can’t participate in NIL pursuits during official team activities, which include games, practices, meetings and team appearances. They also can’t use university or athletic department facilities for NIL activities.

UW athletes also can’t endorse products that conflict with team contracts, so volleyball star Dana Rettke can’t sign a deal to wear Nike clothes because UW is an Under Armour school.

No NIL payments can be for athletic performance or for choosing a particular school to play for. Keeping NIL out of recruiting and preventing pay-for-play situations are key tenets of UW and the NCAA’s policies.

“Those are important issues for our current and future student-athletes to be well versed in, and the responsibility to educate them on that will fall to us,” McIntosh said.

Like other UW policies, athletes who don’t comply could face NCAA or UW penalties and a potential loss of scholarship.

UW’S INVOLVEMENT

One thing UW’s actions this summer — particularly agreeing to a contract with Opendorse to start a program called YouDub, which will help educate athletes about building a brand and using NIL to make money — and NIL policy make clear is that Badgers athletes will be educated on how to leverage their NIL, but they’re on their own to seek and make deals.

"I don't think it would be appropriate for us to be reviewing contracts between student-athletes and third parties, and then providing advice on those,” McIntosh said.

UW can’t arrange NIL payments for companies or give its athletes NIL payments directly. Scholarships are not NIL payments and won’t be revoked or reduced because an athlete signs NIL deals.

McIntosh acknowledges there will be a trail-and-error phase under this policy, and he said that the policy can be amended as the department deems fit.

But he also expressed concern that too much focus will be put on NIL possibilities and not earning a degree.

“I want to be sure that student-athletes are not harmed by the agreements that they enter into,” McIntosh said. “And the department, our institution, can provide only so much education around the marketplace, and a large part of the onus will fall on the student-athletes to avoid that.

“The lifetime value of (a UW) education will dwarf the opportunity that NIL presents. We need to keep things in perspective — that is the overarching priority. But that's not to say that we're not excited about this opportunity.”


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This article originally ran on madison.com.

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