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College Sports, Division III, Education

NCAA Division III Secondary Case Review: Commercial Advertisement Involving Student-Athletes

The Michael L. Buckner Law Firm continues its educational series on NCAA Division III legislation through a review of selected cases involving secondary rules-violations. Today’s post reviews a secondary case involving a violation of NCAA Division III Bylaw 12.5.1.4. The rule provides:

12.5.1.4 Commercial Advertisement.

It is permissible for a student-athlete’s name or picture, or the group picture of an institution’s athletics squad, to appear in an advertisement of a particular business, commercial product or service, provided:

(a) The primary purpose of the advertisement is to publicize the sponsor’s congratulations to the student-athlete or team;

(b) The advertisement does not include a reproduction of the product with which the business is associated or any other item or description identifying the business or service other than its name or trademark;

(c) There is no indication in the makeup or wording of the advertisement that the squad members, individually or collectively, or the institution endorses the product or service of the advertiser;

(d) The student-athlete has not signed a consent or release granting permission to use the student-athlete’s name or picture in a manner inconsistent with the requirements of this section;

(e) If the student-athlete has received a prize from a commercial sponsor in conjunction with participation in a member institution’s promotional activities and the advertisement involves the announcement of receipt of the prize, the receipt of the prize is consistent with the provisions of Bylaw 12.5.1.1.4 and official interpretations approved by the Management Council;

(f) The individual does not accept any remuneration for or permit the use of his or her name or picture to advertise, recommend or promote directly the sale and use of a commercial product or service of any kind; and

(g) The individual does not receive any remuneration for endorsing a commercial product or service through the individual’s use of such product or service.

The bylaws were cited in Secondary Case Number 45655 (December 21, 2010), which involves Division III women’s soccer. The case is summarized below:

Facts: During 2010-11 academic year, numerous student-athletes (SAs) permitted their photograph to be taken to endorse a commercial entity. Specifically, women’s soccer team went on a team-building day to a program called Focus Through Adventure and signed a medical information form that included a photo/media release stating each SA granted Focus Through Adventure the right to use, reproduce, assign and or distribute photographs of each SA for use in materials the program may create. Focus Through Adventure program included a warm-up period, games, group problem-solving initiative’s, low and high ropes course elements and rigorous physical adventure activities. Subsequent to team-building day, women’s head soccer coach provided a team photograph and another photograph of two SAs involved on ropes course to Focus Through Adventure. Focus Through Adventure used these pictures on a postcard promoting the company. Institution discovered violation October 22, 2010, when postcard was received by members of athletics department staff.

Institution Action: Institution will send an official cease and desist letter to Focus Through Adventure.

Enforcement Action:The institution should be required to conduct rules education with athletics department staff and issue a letter of admonishment to head coach.

Eligibility Action: STAFF:  Eligibility reinstated.

Rationale: STAFF: N/A

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About Justin P. Sievert, Esquire

Bar Admissions (North Carolina, Florida and Tennessee) Practice Area (College Sports Law)

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