NIL deals for supplements are 'pretty high risk for not a lot of payout'

ATLANTA — As the ACC‘s reigning second-place finisher in the women’s 3,000-meter steeplechase and the 15th-place finisher in semifinals at the 2022 NCAA Division I Outdoor Track & Field Championships, Duke runner Emily Cole said the personal brand she promotes through NIL aligns with her athletic pursuits.

“I’m about eating healthy and fueling your body well,” Cole told On3 at the inaugural NIL Summit.

Cole said she was diagnosed with Celiac disease last November, so she has had to pay close attention to the ingredients in her food.

For an NIL deal in which she partnered with DoorDash and Wendy’s, she had to get creative. Not only does fast food contrast with her personal brand of eating healthy but given her diagnosis, “I literally can’t eat it,” she said. So in the activation of the deal, “I kind of twisted it,” she said, where the food wasn’t actually for her. She delivered food to her teammates one night when they had gathered to watch a game.

When it comes to compensation, Cole has a similar mantra to UCLA quarterback Chase Griffin, who told On3, “Personally, I do zero product deals.”

“Aside from the [businesses] I’m really passionate about and are really in my niche, I definitely don’t do anything for product,” Cole said. “I’m only doing promotional posts with [cash] compensation.”

This type of deal where the product is the payment, also known as in-kind compensation, is common in NIL activities.

“For me, it’s really been the little bootstrap companies that I’m really passionate about,” she said. “I’m willing to help them out and just take free product and share their things. For me specifically, that’s sports nutrition and running.”

In the last nine months, Cole has added companies that sell gluten-free products to that list.

However, for college athletes who aren’t as meticulous as Cole about line-item ingredients or as steadfast in a cash-first approach to NIL, there’s a potential downside to receiving health and wellness products as compensation.

The products could contain banned substances, or quantities of substances that aren’t banned per se but could still trigger a positive test if consumed in large enough amounts in a short period of time. The NCAA’s drug testing program states that athletes “who test positive for a banned substance, or who breach NCAA protocol, are subject to loss of eligibility.”

“We do a ton of education around just how dangerous supplements can be and that [athletes] just have to get in this habit of checking their supplements with a dietitian,” said Purdue Assistant Athletics Director of Sports Nutrition Lauren Link, who’s also the vice president of the Collegiate and Professional Sports Dietitians Association. “We have that protocol anyways. So then enter NIL into the scene and we have definitely tried to really hammer that home that this doesn’t change that. The NCAA doesn’t care if you pop positive on a drug test…that you had an NIL deal with that company.”

‘Recommended to speak with [athletic trainer] to confirm no banned substances’

On3 requested and obtained a redacted copy of Kent State‘s NIL disclosures from May. The athletes’ names, the sports they play and the names of the partner companies were redacted. The limited remaining information allows for the identification of high-level trends across a large number of athletes.

Eight of the 39 NIL activities that were disclosed from May 1 through June 2, or roughly 20 percent, fell into the supplements category. In six of the eight Kent State deals involving supplements brands, the athlete was compensated at least in part with free product or merchandise. In another deal, an athlete’s compensation included store credit.

“Off the top of my head I don’t think we’ve seen anything where I was like, ‘Oh my gosh, don’t take that. It has a banned substance in it,'” Link said. “But I would say probably the majority of what we’ve seen have not had third-party testing and that’s really what we look for when it comes to supplements.

“What I have found,” she continued, “at least in the early days of NIL is that, sure, the big, really reputable companies may do some NIL deals but what we’ve found much more so are the start-up, make-’em-in-my-basement, whatever kind of companies that don’t have any sort of third-party testing, that I would not consider reputable in any sense, those are the companies really targeting our athletes.”

In one NIL deal involving supplements that was disclosed to Kent State in which the athlete received cash compensation and free merchandise, the comments column stated, “Recommended to speak with AT [athletic trainer] to confirm no banned substances in this supplement if she plans to use it.”

At best, it takes an informed estimate to try to quantify the true share of the NIL market that falls under the wide umbrella of health and wellness companies. “I’d say between five and 10 percent is probably a reasonable assumption,” said Ayden Syal, the CEO and co-founder of the NIL marketplace MOGL.

One of the biggest challenges in the first 12 months of the NCAA’s NIL era was the lack of verifiable data across the entire industry. There are numerous NIL marketplaces, where athletes can connect with brands, and more than 1,000 NCAA member institutions, each of which has access to some of the details of their athletes’ NIL activities.

“I would say, easily, we’ve vetted 30 to 40 athletes with some sort of supplement or product deal on the table,” Link said.

Opendorse Senior Director of Communications Sam Weber wrote in an email that nutrition companies make up about 4.5 percent of brand-driven NIL activities, based on the NIL technology provider’s data. That category of companies isn’t limited to those that sell supplements.

“The other kind of unfortunate part about the NIL stuff with the topic of supplements is that what I have found is it doesn’t just affect that athlete,” Link said, “because what do you do with that free product? You probably give it to teammates. You probably give it to family members. You kind of give it away, especially if you’re getting very much. So now you’re putting potentially teammates at risk because I have some athletes that said, ‘Well, you know, I’m going to do it, but I won’t take it.’

“Then this becomes kind of like an ethical issue or something.”

‘If there’s a health and wellness substance or [NIL] deal, we make sure that it’s compliant’

MOGL bills itself as “the compliant NIL marketplace for athletes and brands.” Members of its team will have an initial consultation with any new brand or company that wants to join its marketplace.

First, is the company actually what its representatives say it is?

Second, what are the company’s goals in working with college athletes?

“And then, finally, we make sure that they’re not under the banned substances list,” Syal said. “We make sure that if there’s a health and wellness substance or deal, we make sure that it’s compliant with the NCAA. That’s why we have internal compliance directors.”

Syal knows a lot of the companies that could benefit from arranging NIL deals with athletes are in the health and wellness industry. Athletes could naturally align with those products and resonate with their consumers.

Syal said MOGL has cleared a number of health and wellness companies, including some that sell products related to immune support, stress relief and moisturizers, after verifying their products didn’t contain banned substances. But that’s not the case for every company. Some companies, such as those that sell pre-workout supplements, could potentially come with additional risk.

“We have actually historically had a few brands … that weren’t able to basically verify for us that they were licensed products or allowable products by the NCAA to work with our collegiate athletes,” he said.

There’s much less regulation and third-party testing of supplements compared to food, Link said.

“Your food — your package of pretzels, let’s say — would have a Nutrition Facts label and you can feel confident that the FDA approves that Nutrition Facts label. Supplement Facts don’t have that,” Link said. “There’s very little pre-market regulation that goes into that label so what that means is that any claims that that product makes are not being checked.

“It means that the Supplement Facts label on the back — so the ingredients, the amounts — aren’t necessarily accurate so that product could have something in it that’s not listed on the label. It could have something listed on the label that’s not actually in it. It could have different amounts than are what in it and it’s actually wildly common.”

Emily Cole: I ‘run everything by them and make sure that everything is clean’

The NCAA’s list of banned substances last academic year noted, “It is the student-athlete’s responsibility to check with the appropriate or designated athletics staff before using any substance.”

How does Cole — someone whose brand is eating healthy, who has been diagnosed with Celiac disease and who’s active in the NIL landscape — make sure she doesn’t accidentally consume a banned substance?

“NSF [National Sanitation Foundation] Certified for Sport for supplements,” Cole said. “I look on that website but then we are also lucky enough to have an amazing support team. I reach out to our registered dietitian and kind of run everything by them and make sure that everything is clean.”

Purdue has five full-time dietitians, which puts the school’s dietitian to athlete ratio at about one to 100, “which is pretty good, in my opinion,” Link said. She said that puts Purdue in the upper third of the Power 5 in terms of the staffing of dietitians.

However, “it drops off significantly after that” in college athletics, she said.

Are athletes receiving the dietary resources they need? ‘The reality…is no’

College athletes, individually and in the aggregate, have said they need more education and resources regarding NIL-related topics such as taxes.

What about their health and diets? Are athletes getting what they need?

“There are still dietitians out there who have one dietitian for six, seven, 800 athletes,” Link said. “So the reality in what you’re asking is no, because how could you get that idea across well enough to 800 athletes if it’s just one person and you’re also being asked to do who knows how many other things in addition to just educate? And I’m still talking probably Division I. So then think about all the other athletes in lower levels, at smaller Division I [schools], non-Power 5, certainly at Division II, III, etcetera.”

Intentionally or not, not every athlete is reportedly taking the precautions that Cole said she takes.

“There are definitely some products that a lot of people are still using that actually have a couple things in them that might show up,” she said. “But it’s interesting to me how for different banned substances, there isn’t actually that much testing or regulation on it right now so a lot of people are getting away with things.”

While it remains to be seen if, and how, state legislation regarding NIL will be enforced, the Arkansas Student-Athlete Publicity Rights Act prohibits athletes in the state from earning NIL compensation related to “any product, substance, or method that is prohibited in competition by an athletic association, athletic conference, or other organization governing varsity intercollegiate athletic competition.”

Opendorse’s Weber wrote that he hasn’t heard of any negative situations regarding NIL activities involving nutrition products, but he said that it could certainly come up.

However, an athlete must first be drug tested in order face the potential penalties of a positive test.

Emily Cole: ‘I haven’t been drug tested once in college. I’m a junior’

“I haven’t been drug tested once in college,” Cole said. “I’m a junior, going to be a senior. I don’t know if that’s something that’s going to step up a lot in this next year because of all of these supplements and brand [deals] but I think it’s something a lot of people could’ve been getting away with for a while now and just not really know.”

The NCAA and its members share the responsibility of drug testing.

A page on the NCAA’s website for its drug testing program states, “The NCAA tests for steroids, peptide hormones and masking agents year-round and also tests for stimulants and recreational drugs during championships. Member schools also may test for these substances as part of their athletics department drug-deterrence programs.”

The NCAA tests at its championships and year-round on its members’ campuses. The year-round testing is for anabolic agents, diuretics, hormones and growth factors.

At NCAA individual championship events, the selection of athletes can occur based on “competitive ranking, random selection, position of finish, or other NCAA-approved selection method.” Another line in the NCAA’s drug testing program says, “The NCAA may test for any banned substance at any time.”

Cole said a few competitors were randomly selected at the NCAA outdoor track and field championships in Eugene, Oregon. She wasn’t one of them. That capped off her third year in a row without a drug test.

Cole said she isn’t aware of her teammates being drug tested either. She doesn’t know how often they’re supposed to be.

‘That’s a lot of risk for an athlete to take on for not a lot of reward’

For all the handwringing about the potential dangers in the NIL era, a deal with a health and wellness company that goes wrong is probably on the more plausible side of the spectrum, given the estimated market share that health and wellness companies have in the NIL market.

It would be among the ultimate lose-lose situations for all parties involved. An athlete could lose eligibility. The athlete’s school would be unable to benefit from the athlete’s athletic gifts. The reputation of the athletic department’s compliance staff or dietitians could suffer. The third-party company could become the face of NIL deals gone bad. The fallout could potentially scare off other companies in the industry from entering into future NIL agreements with college athletes.

“Often what makes it maybe even sillier to me for our athletes is that they’re not getting these great cash deals. They’re getting a box of free product dropped off on their porch,” Link said. “So that’s a lot of risk for an athlete to take on for not a lot of reward, for a box of free products or maybe the ability to say, ‘I have an NIL deal’ and boast that on my social media.

“It’s a pretty high risk for not a lot of payout.”