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NCAA to Allow Players to be Compensated for their Names, Likenesses, and Images


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1 minute ago, Burt Macklin said:

I don’t view that as a middle ground really. I don’t think anyone expects players to get to use school marks with no oversight or compensation  to the school.

 

Well, it's probably going to happen, as a practical matter.   

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1 minute ago, TwiceHorn said:

Well, it's probably going to happen, as a practical matter.   

Here's the Ohio "statute," actually an executive order from the Governor (hmm). https://governor.ohio.gov/wps/portal/gov/governor/media/executive-orders/executive-order-2021-10d

Theirs states that nothing in the order:

  1. Establishes or grants to a student-athlete any right to use the name, trademarks, services marks, logos, symbols, or any other intellectual property, regardless of whether the intellectual property is registered with the appropriate authority, that belong to a state institution of higher education, private college, athletic association, conference, or other group or organization with authority over intercollegiate athletics, to further the student-athlete's opportunities to earn compensation for use of the student-athlete's name, image, or likeness;

So an Ohio institution is free to grant a license or some form of permission.

 

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7 minutes ago, WhatTheBuck said:

Wtf are you talking about? No I didn’t. 

You don’t seem to understand the situation. The Texas law does not allow schools to let players use their marks or grant a license even if the school were to receive compensation. 
 

Ohio law clearly allows it , and tOSU is clearly doing it, and you proved that with the link you posted. 

No one is arguing players should get to profit off their schools’ marks with no licensing or compensation to the school. 

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13 minutes ago, TwiceHorn said:

Here's the Ohio "statute," actually an executive order from the Governor (hmm). https://governor.ohio.gov/wps/portal/gov/governor/media/executive-orders/executive-order-2021-10d

Theirs states that nothing in the order:

  1. Establishes or grants to a student-athlete any right to use the name, trademarks, services marks, logos, symbols, or any other intellectual property, regardless of whether the intellectual property is registered with the appropriate authority, that belong to a state institution of higher education, private college, athletic association, conference, or other group or organization with authority over intercollegiate athletics, to further the student-athlete's opportunities to earn compensation for use of the student-athlete's name, image, or likeness;

So an Ohio institution is free to grant a license or some form of permission.

 

Exactly. And they’ll get paid licensing fees. As should be expected. As in the second scenario you mentioned earlier to which I first replied. Doesn’t that make perfect sense?

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Just now, WhatTheBuck said:

Exactly. And they’ll get paid licensing fees. As should be expected. As in the second scenario you mentioned earlier to which I first replied. Doesn’t that make perfect sense?

Obviously, but Texas can’t do that, which was the whole point of the post you responded to. 

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1 minute ago, Burt Macklin said:

You don’t seem to understand the situation. The Texas law does not allow schools to let players use their marks or grant a license even if the school were to receive compensation.

If that’s the case then no, I can’t wrap my head around that. Is that really true? That would make no sense. This thread moves too fast for me to keep up on everything but, criminy, that’s hard to believe. That sounds like UT would refuse a license to just anyone willing to put a Longhorn logo on a coffee mug but surely that can’t be the case. (Incidentally, if you go to Bed Bath & Beyond, the coffee mugs displaying Buckeye trademarks cost more than twice as much as the ones that don’t.) Since when is Texas one to refuse a new revenue stream?

If what you say is true, who’s responsible? They should be sacked. 

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3 minutes ago, WhatTheBuck said:

If that’s the case then no, I can’t wrap my head around that. Is that really true? That would make no sense. This thread moves too fast for me to keep up on everything but, criminy, that’s hard to believe. That sounds like UT would refuse a license to just anyone willing to put a Longhorn logo on a coffee mug but surely that can’t be the case. (Incidentally, if you go to Bed Bath & Beyond, the coffee mugs displaying Buckeye trademarks cost more than twice as much as the ones that don’t.) Since when is Texas one to refuse a new revenue stream?

If what you say is true, who’s responsible? They should be sacked. 

It’s in the law. It’s not a UT policy. But thank you for admitting you’ve had no idea what you’re talking about this entire time. 

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1 hour ago, TwiceHorn said:

I tend to agree, from a theoretical legal perspective.  And from where this all originated.  Meaning, players inherently own their name, image, and likeness.  It is fundamentally unfair to use it without compensation.  Conversely, players should have the ability to utilize their NIL for compensation.

That's an at least slightly different issue from players now having carte blanche to whore themselves out however they see fit as long as it can be tangentially connected to NIL.

Regardless, I think the Texas law puts UT and Texas schools at a disadvantage relative to their peers by forbidding the use of university trademarks.  Note that the law doesn't say infringing use, but any use at all.

As mentioned in the previous post, I don't think any/all use of Texas' trademarks in "promo spots" constitutes infringement.  Wearing "gear" wouldn't.

Now, if the spot includes all kinds of longhorn logos and symbols in the background or foreground, or some other such "organic" use of the marks, that likely would constitute infringement.

A trademark owner has two "responsibilities" with regard to third parties' use of its trademarks:  "prosecute" infringement by unauthorized users and insure that licensees use marks in such a way that it doesn't "hurt the brand."  If it isn't infringement ab initio, or is a close case, there's no loss of rights associated with failure to "prosecute."  As "agents" or "sponsees" of the University, I think players could be granted a royalty-free license to use University marks, so long as the University retains a right of approval without legally affecting enforceability.

What are the legal ramifications of exempting some but not others? I recall some young people making small quantities of bootleg t-shirts to sell at concerts in order to support themselves on tour while following a favorite band. When their wares were confiscated by the band’s security, they were told that the band had to enforce the trademark rules against even the small-timers, despite the fact that they were serious fans of the band, in order not to weaken their case against mobsters engaging in selling counterfeit t-shirts on a large scale.

Is that a thing? I remember my earliest concert going experiences back in the 80’s and buying mass produced concert “jerseys,” (which weren’t like football jerseys, they were sort of like black sleeveless t-shirts with colored sleeves attached and artwork that clearly defined them as counterfeit, but they were a lot cheaper than what you could buy in the venue and I was still in high school). If a school tells someone that they can use their logo free of charge but someone else can’t, wouldn’t that present some legal challenges?

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51 minutes ago, ChickenSandwich said:

How does it work in the NFL?  When players endorse products most of the time they aren’t wearing team gear. I’d assume the need permission or license to do so?  Is the Ohio law different?  
 

 

 

39 minutes ago, WhatTheBuck said:

What are the legal ramifications of exempting some but not others? I recall some young people making small quantities of bootleg t-shirts to sell at concerts in order to support themselves on tour while following a favorite band. When their wares were confiscated by the band’s security, they were told that the band had to enforce the trademark rules against even the small-timers, despite the fact that they were serious fans of the band, in order not to weaken their case against mobsters engaging in selling counterfeit t-shirts on a large scale.

Is that a thing? I remember my earliest concert going experiences back in the 80’s and buying mass produced concert “jerseys,” (which weren’t like football jerseys, they were sort of like black sleeveless t-shirts with colored sleeves attached and artwork that clearly defined them as counterfeit, but they were a lot cheaper than what you could buy in the venue and I was still in high school). If a school tells someone that they can use their logo free of charge but someone else can’t, wouldn’t that present some legal challenges?

Bootlegging t-shirts is different than if the band licenses the use for a royalty/fee. It’s the same with schools. Granting use via Official licensing/approval does not impact the trademark. Failure to enforce illegal use does. No players will be allowed to use school IP without the school’s permission.

1 hour ago, ChickenSandwich said:

How does it work in the NFL?  When players endorse products most of the time they aren’t wearing team gear. I’d assume the need permission or license to do so?  Is the Ohio law different?  
 

 

Plenty of players use team or NFL trademarks in their ads, but the sponsor has to get a license from the team/league. The Ohio law works the same. 

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1 hour ago, ChickenSandwich said:

How does it work in the NFL?  When players endorse products most of the time they aren’t wearing team gear. I’d assume the need permission or license to do so?  Is the Ohio law different?  
 

 

In the NFL, it's like regular life.  Someone uses NIL without permission, they get sued.  Player uses team trademarks without permission, they get sued.

It's kind of interesting that athletes never (as far as I know) sued to stop jersey sales, among other things.  The eligibility rules would have prevented them from recovering damages (or accepting them), but I'm not aware of anything that would have stopped them from suing.

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1 hour ago, WhatTheBuck said:

What are the legal ramifications of exempting some but not others? I recall some young people making small quantities of bootleg t-shirts to sell at concerts in order to support themselves on tour while following a favorite band. When their wares were confiscated by the band’s security, they were told that the band had to enforce the trademark rules against even the small-timers, despite the fact that they were serious fans of the band, in order not to weaken their case against mobsters engaging in selling counterfeit t-shirts on a large scale.

Is that a thing? I remember my earliest concert going experiences back in the 80’s and buying mass produced concert “jerseys,” (which weren’t like football jerseys, they were sort of like black sleeveless t-shirts with colored sleeves attached and artwork that clearly defined them as counterfeit, but they were a lot cheaper than what you could buy in the venue and I was still in high school). If a school tells someone that they can use their logo free of charge but someone else can’t, wouldn’t that present some legal challenges?

I addressed this above in posts on the preceding page.

But you asked a different question, slightly.  Unlike in patents, royalties for trademark licensing are always negotiated (while in patents a royalty can be awarded as damages in a lawsuit).  To some extent, cheap licenses to similar parties might drive down the royalty rate in negotiations, but the University can't be forced to grant a license..  Where it can really hurt is when it is used to drive down lawsuit damages, which isn't an issue in trademark infringement, because royalty is almost never a measure of damages.

Moreover, I think student-athletes are or can be regarded as very different from your average commercial licensee.  They already represent the University in almost everything they do.  They could be considered agents and granted a special permission to use the marks at low or no cost without affecting other transactions, because the NIL deals are so "unique" compared to most TM licenses.

Texas is notoriously aggressive in enforcing its trademarks against "innocent" and de minimis infringers.  All in the name of protecting the brand and maximizing the value of the marks against even the slightest incursion that could result in devaluation.  See, e.g. shaggybevo.com.

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13 minutes ago, TwiceHorn said:

In the NFL, it's like regular life.  Someone uses NIL without permission, they get sued.  Player uses team trademarks without permission, they get sued.

It's kind of interesting that athletes never (as far as I know) sued to stop jersey sales, among other things.  The eligibility rules would have prevented them from recovering damages (or accepting them), but I'm not aware of anything that would have stopped them from suing.

This got wrapped up in the O’Bannon litigation along with the NCAA Football video games. As far as I know, most, if not all, schools stopped selling individual current players jerseys at that point. I believe NCAA sports entered into a $65 million settlement as a result of that too and then stopped making the game. 

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41 minutes ago, Burt Macklin said:

This got wrapped up in the O’Bannon litigation along with the NCAA Football video games. As far as I know, most, if not all, schools stopped selling individual current players jerseys at that point. I believe NCAA sports entered into a $65 million settlement as a result of that too and then stopped making the game. 

Well, O'Bannon was mostly an antitrust suit rather than an NIL suit, per se, as were most of the companion cases that all got wrapped up into Alston.  But that may be because EA Sports settled out real quick and they would have been the actual NIL infringer, taking those claims out of play.

Part of the problem is that NIL is still a relatively new intellectual property and mostly governed by state law.  Some states barely recognize it unless you are "famous," in which case it's pretty easy to slot as a federal trademark violation.

So, you have ignorant athletes mostly without representation, and a fairly novel legal theory, but now the horse it out of the barn.

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10 minutes ago, TwiceHorn said:

Well, O'Bannon was mostly an antitrust suit rather than an NIL suit, per se, as were most of the companion cases that all got wrapped up into Alston.  But that may be because EA Sports settled out real quick and they would have been the actual NIL infringer, taking those claims out of play.

Part of the problem is that NIL is still a relatively new intellectual property and mostly governed by state law.  Some states barely recognize it unless you are "famous," in which case it's pretty easy to slot as a federal trademark violation.

So, you have ignorant athletes mostly without representation, and a fairly novel legal theory, but now the horse it out of the barn.

Right, I believe EA had claims  against them at first, because it was the video games that made O’Bannon pursue a lawsuit. I think the schools just saw the train coming down the tracks on that issue and decided to hop off.

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4 hours ago, TwiceHorn said:

Yeah, that seems to reflect the middle position, that players can involve university marks in their NIL efforts with permission, or a license.

The Texas law states that an athlete may not earn compensation:

for providing an endorsement while using intellectual property or other property owned by the institution;

That is, no helmets, no jerseys, no TMS-DKR, nothing presumably on campus, no logos no nothing.  From a strictly theoretical standpoint, it makes perfect sense:  the value the student-athlete obtains should be from his own NIL, not his NIL associated with or bootstrapped by UT.  Without such a provision, a crafty "buyer" could use a no-name athlete to associate itself with the University in a way it could not otherwise, or not without paying hefty royalties.

 

I guess what I don't get is Who is responsible for enforcing this law?  If Bijan does a commercial wearing burnt orange and flashes the Hook 'Em, the cops aren't going to show up at his door.  This part of the law is going to be a big nothingburger unless UT wants to push its enforcement, right?

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1 hour ago, Beau Vine said:

I guess what I don't get is Who is responsible for enforcing this law?  If Bijan does a commercial wearing burnt orange and flashes the Hook 'Em, the cops aren't going to show up at his door.  This part of the law is going to be a big nothingburger unless UT wants to push its enforcement, right?

I could see schools turning each other's players in for violations... I mean would a school really care if their athlete did a paid promotion while wearing team issued sweat pants? But could the school that lost out on that recruit maybe turn them in? I dunno how the law is written, is there even a punishment specified for violations? And who would you report violations too?

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1 hour ago, Beau Vine said:

I guess what I don't get is Who is responsible for enforcing this law?  If Bijan does a commercial wearing burnt orange and flashes the Hook 'Em, the cops aren't going to show up at his door.  This part of the law is going to be a big nothingburger unless UT wants to push its enforcement, right?

True.  Presumably, UT would reject a player contract that had this in it, but it's unlikely that the contract would spell it out.

They could take legal action against the "buyer," or even the athlete.  It's not quite explicit, but it seems they could revoke eligibility over it.

Most of us assume that UT was behind the provision.  If that's accurate, it seems unlikely they would let it slide.  But who knows, especially now that it seems to be a handicap.

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25 minutes ago, JMFP said:

I could see schools turning each other's players in for violations... I mean would a school really care if their athlete did a paid promotion while wearing team issued sweat pants? But could the school that lost out on that recruit maybe turn them in? I dunno how the law is written, is there even a punishment specified for violations? And who would you report violations too?

No.  The law is basically written that a university may not revoke eligibility for any of the permitted NIL activities.  The trademark/IP/property part is written as a straight-up prohibition, but without an explicit remedy.

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1 hour ago, Beau Vine said:

I guess what I don't get is Who is responsible for enforcing this law?  If Bijan does a commercial wearing burnt orange and flashes the Hook 'Em, the cops aren't going to show up at his door.  This part of the law is going to be a big nothingburger unless UT wants to push its enforcement, right?

Yeah, that’s a pint I’ve been making the whole time. The only thing the law does for a violation is it allows the school to punish the player or remove eligibility. The NCAA has already said they won’t do a thing regarding NIL, so basically it’s all up to Texas, yet we’re broadly and strictly enforcing the law for no reason. 

24 minutes ago, JMFP said:

I could see schools turning each other's players in for violations... I mean would a school really care if their athlete did a paid promotion while wearing team issued sweat pants? But could the school that lost out on that recruit maybe turn them in? I dunno how the law is written, is there even a punishment specified for violations? And who would you report violations too?

Not really, no. Just allows the school to punish. There’s nothing criminal about it, and there’s no civil enforcement mechanism Siam for the AG to enforce. 
 

2 minutes ago, TwiceHorn said:

True.  Presumably, UT would reject a player contract that had this in it, but it's unlikely that the contract would spell it out.

They could take legal action against the "buyer," or even the athlete.

Most of us assume that UT was behind the provision.  If that's accurate, it seems unlikely they would let it slide.  But who knows, especially now that it seems to be a handicap.

I’m not so sure that was the case. It doesn’t seem like the lege consulted any of the P5 schools in Texas, as they all would’ve had a problem with parts of it, IMO. 

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2 minutes ago, TwiceHorn said:

He could I guess. It would not seem to be a valid one, though. 

Yeah, it would be invalid to the extent it conflicts with the statute and would get easily overturned if anyone challenged, but again, who is going to challenge it? None of the relevant parties involved in NIL have any incentive to do so. Regardless, I can’t see Abbott doing that.
 

The schools would be better off just ignoring the statute. I expect schools like A&M and Baylor will ignore it while UT limits itself for no good reason. 

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On 8/7/2021 at 3:43 PM, WhatTheBuck said:

You should be fined for using school colors without a license. 

"Scarlet is my mom's favorite color and gray is for my dad's hair"

see how easy that was...

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5 hours ago, Burt Macklin said:

Yeah, it would be invalid to the extent it conflicts with the statute and would get easily overturned if anyone challenged, but again, who is going to challenge it? None of the relevant parties involved in NIL have any incentive to do so. Regardless, I can’t see Abbott doing that.
 

The schools would be better off just ignoring the statute. I expect schools like A&M and Baylor will ignore it while UT limits itself for no good reason. 

That's true.  The statute is premised on the idea that schools actually want to revoke eligibility, rather than are forced to by external rules that no longer apply.

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Blocking deals for saying the word Texas or using the color orange is insane. Hard to imagine that's even legally defensible.

Side note but I saw DJ Ugalelei got a national Dr Pepper deal and in the screenshot he's just wearing a generic orange jersey. 

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On 8/12/2021 at 1:19 PM, Dbeasy said:

There have been several comments suggesting Texas just ignore players wearing Texas stuff. Texas cannot do that, or they would be putting their copyrights at risk with the whole world for not enforcing it consistently.  

Most comments are not about ignoring it. The idea is they would authorize the use. If they do that, then there is no risk to their IP. 
 

 

1 hour ago, BurntOrange&White said:

I would say that’s the wrong shade but at this point I don’t even care with our retarded compliance department 

It’s the wrong shade on purpose. This is what we’ll see a lot. UT only has IP regarding one specific pantone so players/sponsors will just use others that are a little off, leading to further dilution and incorrect variations of burnt orange. 

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1 hour ago, Burt Macklin said:

Most comments are not about ignoring it. The idea is they would authorize the use. If they do that, then there is no risk to their IP. 
 

 

It’s the wrong shade on purpose. This is what we’ll see a lot. UT only has IP regarding one specific pantone so players/sponsors will just use others that are a little off, leading to further dilution and incorrect variations of burnt orange. 

I think the worries about weakening Texas' trademarks are overblown.  To the extent it would happen at all, I think there are legal ways around it that I have mentioned upthread.  "Ignoring" it is probably the most likely to cause some type of damage.

The bigger issue may be that UT sees it as an easy way for potential licensees to use Texas' marks without paying compensation to UT, just to the athlete.

It is notoriously difficult to assert a trademark in a single color (as opposed to a combination of two colors).  That we argue and bitch so much about burnt orange may signify that it is actually a trademark.  Or maybe it's just an issue of aesthetics (which would mean not a trademark).

Note that the UT official NIL site I linked above in 1138 is now a 404.  Something may be afoot.

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2 minutes ago, TwiceHorn said:

I think the worries about weakening Texas' trademarks are overblown.  To the extent it would happen at all, I think there are legal ways around it that I have mentioned upthread.  "Ignoring" it is probably the most likely to cause some type of damage.

It is notoriously difficult to assert a trademark in a single color (as opposed to a combination of two colors).  That we argue and bitch so much about burnt orange may signify that it is actually a trademark.  Or maybe it's just an issue of aesthetics (which would mean not a trademark).

Note that the UT official NIL site I linked above in 1138 is now a 404.  Something may be afoot.

I noticed that as well. Maybe they’re going to say fuck it?

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  • 2 weeks later...
  • 3 months later...

I'm sure this is old news for a lot of folks...

Griffin McVeigh•6 days

Steph Curry sign UConn women's basketball star to NIL deal

Quote

The NIL scene has been changing ever since it’s been announced. Some creative deals have been struck between companies and college athletes. On Wednesday one between one of the biggest NBA stars and one of women’s college basketball’s rising stars struck a deal.

According to Front Office Sports, Steph Curry and his brand, SC30 Inc., have signed UConn women’s basketball star Azzi Fudd to a “wide-ranging” NIL deal. The two met during a camp in 2018 and have been good friends ever since. Now, their relationship has been taken to a new level.

Curry says he is not only going to sponsor Fudd but personally mentor her throughout her basketball career. The Golden State Warriors star called the UConn player the “next face of women’s basketball.”

Official terms of the deal have yet to be released. Curry is now the first NBA player to personally sponsor a collegiate athlete.

“Azzi Fudd is the best choice to start a brand relationship like this because she is the next face of women’s basketball and has been a part of SC30 Inc. and the Curry Brand family since she was an invitee to the All-American Camp,” Curry said via ESPN.

“Our values are aligned when it comes to family, and in terms of hard work and for the appreciation of blessings in your life,” Curry continued. “For me, this is the right time because I have identified the platforms that I have, aligning purpose over profit, and the ability to collaborate with the right partners for the right opportunities. I want to be able to unlock that for Azzi, and for other talented athletes and influencers that see the world the same way I do. It is my hope that we can inspire the next generation of athletes and non-athletes who want to do amazing things.”

Fudd and the Huskies have played four games so far this season with a 3-1 record. She is the fourth leading scorer on the team, averaging 7.5 points per game. On the glass, Fudd has nine total on the season along with two assists. However, her most impressive stat may be only committing three turnovers.

On Nov. 21 against Southern Florida, the true freshman scored a career-high of 18 points, going 6-9 from behind the three-point arc.

Curry himself has been lighting it up on the court as well. The three-time NBA Champion, two-time MVP, and two-time scoring champion picked up where he left off from last season, averaging 27.8 points per game. He is also averaging 6.6 assists and securing 5.7 rebounds.

 

https://www.on3.com/news/golden-state-warriors-steph-curry-uconn-huskies-azzi-fudd-nil-contract-sc30-inc-brand-basketball-nba-wnba/

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10 hours ago, General Specific said:


Typical land thief fail, as it’s behind a paywall.

It's behind a cookie-wall, but not behind a paywall, atleast not for me. I certainly do not, and will not ever, pay for 'news' on/from any site, including supposed insider sites. But there is one thing curious. The site is at eu.hookem.com. I'm able to access this with no problem as I'm based in Europe. Bit surprising you'd be seeing an actual paywall though.... I can quote the article.

 

Quote

Texas has long been the nation’s No. 1 seller of collegiate branded merchandise. But all the money from every T-shirt, jersey, coffee mug and key chain sold went directly to UT. That’s going to change.

In a Friday afternoon news dump last week, the Texas athletics department quietly announced what is easily the biggest achievement yet for UT athletes when it comes to name, image and likeness issues.

The Longhorns have entered into a group licensing partnership with The Brandr Group, a company that specializes in licensing and sponsorships with pro athletes and sports leagues. 

Quote

University athletes who opt into the voluntary agreement can begin using Texas trademarks and logos in various name, image and likeness deals. It’s the first step toward UT being able to sell official jerseys and player-specific apparel — with the athlete getting a small percentage of every sale.

Dated August 23, 2021.

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