CLEMSON — On the evening of Dec. 7, 2019, Clemson celebrated its fifth consecutive ACC Championship. Football coach Dabo Swinney stood atop a stage and thrust the trophy high, whooping as orange and white confetti fell on his players below.
The moment was captured in a photograph, which now lives on pages 18-19 of the 2021 membership guide for IPTAY, the fundraising wing of the Tigers' athletics department that raised $63.7 million for the 2019-20 academic year.
Beside the photo is IPTAY's 2021 benefits chart, which details the perks available to prospective donors, ranging from PAW ($60) to RIGGS ($25,000). Of all the players crowded together in the photo, only one players' jersey number and name is visible: star quarterback Trevor Lawrence.
"They're using his likeness, his picture, that particular photo because they know it's good marketing," said Robert Brown, an economics professor at California State, San Marcos. "What's good marketing do? It increases the demand for watching the games, attending the games and season tickets. And to get a season ticket is tied to how much you contribute."
The NCAA is expected to adopt rules allowing athletes to profit off their name, image and likeness (NIL) ahead of the 2021-22 academic year, and several pieces of legislation are bouncing around Congress. Absent from the dialogue is the reality that colleges and universities will likely retain the right to indirectly profit off players' NIL long after the players leave.
At Clemson, athletes upon arriving on campus sign an ACC Promotional Activities Authorization form, which authorizes Clemson and the ACC to use athletes' name, voice, image, photograph, likeness, right of publicity or other image or descriptors in promotional and marketing material.
The form does not include an expiration. That's why IPTAY can still use the image of Lawrence, who graduated in December, in its guide.
A similar document athletes sign at another Power 5 institution is more explicit in its timetable.
"I hereby irrevocably authorize the University, its officers, agents and employees, without limitation, to reproduce copy, sell, exhibit, publish or distribute and any all such Materials," the form reads, "in perpetuity."
Tye Gonser, a California attorney, in 2018 partnered with San Francisco 49ers quarterback Josh Rosen to pen a proposal that would allow college athletes to profit off their NIL upon graduation.
Gonser said the forms bring up the issue of "informed consent." He suggested athletes should have the option to out out or opt back in after leaving school.
"Should these releases they sign when they are 17-18 years old be allowed to go on forever?" Gonser said. "I don't know if this is true, but it could be that some student-athletes would say that they feel like they had to sign this release or they didn't get to play sports, or it wasn't presented in a manner that they had an option."
The forms do not apply to more tangible items, like player jerseys. While athletics departments often sell number-only jerseys of active players — two of Clemson's biggest sellers last season were No. 9 (worn by running back Travis Etienne) and No. 16 (worn by Lawrence) — they also sell jerseys of former players that include names.
Clemson, for example, sells orange Tigers jerseys made by Nike of Deshaun Watson, DeAndre Hopkins, Sammy Watkins, Dexter Lawrence, Christian Wilkins, Clelin Ferrell and Shaq Lawson.
Those players, who are all in the NFL, receive royalties for jersey sales through the NFLPA's group licensing program.
"Group player rights are exclusive rights to license the use of six or more active NFL players for any commercial use," said Jenna Sobray, the NFLPA's integrated marketing senior manger for licensing and development. "Licensees can feature the players' name, numbers, likeness, signatures on products."
The NFLPA is monitoring pending NIL legislation, Sobray said. Several politicians, including Sen. Corey Booker (D-NJ) and Sen. Marco Rubio (R-FL), have presented proposals, ranging in the degree of control the NCAA would hold over the market.
Nothing has been agreed upon yet, though, and several state legislatures have passed their own laws allowing college athletes to profit off their NIL through third-party vendors. Florida's version is set to go into effect July 1, 2021.
Whenever legislation goes into effect, Clemson athletes will be ready. The university has a partnership with social media technology platform Opendorse, and through the Opendorse Ready program Tigers athletes are being taught how to monetize their digital brands.
But it's unclear if there will be any change in the forms athletes sign authorizing the university to use their NIL for marketing and promotional purposes.
Photos of former Tigers players are littered across the IPTAY website, as well as the membership guide. Splashed across pages 30-31 of the guide is a blown-up photo of the Clemson basketball team, with Tevin Mack, a graduate transfer in 2019-20, gesturing toward the Tigers' bench.
Beside the photo is a blurb titled 'The Governance of IPTAY,' which explains that the organization is run by a board of directors and a CEO. Davis Babb, the longtime IPTAY CEO who gets paid through athletic department funds, earned a base salary $300,000 in financial year 2020, tied for the most among all full-time university employees with athletics director Dan Radakovich.
That universities use athletes' NIL for promotion and marketing isn't necessarily an urgent moral wrong, Gonser said. But he suggested more transparency wouldn't be a bad thing.
A former baseball player at Lafeyette in the early 2000s, Gonser recalled feeling excited as a student to see his face on a poster.
"I thought it was cool," Gonser said, chuckling. "I also had no idea what name and likeness even meant at that point."