1. Wednesday, Ohio State quarterback Braxton Miller reposted an Instagram of himself and Brandon Oshodin, a trainer for Authentik Fitness, sitting next to AdvoCare nutritional products.
2 . You’ve likely seen AdvoCare as a bowl sponsor or in a barrage of commercials featuring Drew Brees. AdvoCare, like Amway or Avon, works when distributors bring on other individuals to help sell under them. Social networking is paramount. To make more money, you need to sell but also recruit others to do the same.
3. If Miller is selling AdvoCare products, that’s not an NCAA violation. The NCAA allows students to be employed and self-employed.
4. By appearing in the Instagram, Miller could be construed as using his image to endorse the sale of a commercial product. That’s an NCAA violation, likely the reason Miller took the Instagram down the same day.
So can Miller sell AdvoCare to the best of his ability, including using social media to garner sales, without getting in trouble?
To better understand, I asked Texas A&M University compliance director Brad Barnes. Normally, we just ask Barnes stupid compliance questions, and despite the fact that active compliance directors are naturally hesitant to comment on players, he agreed to help us better understand.
First, two things:
AdvoCare has suggested guidelines for NCAA athletes. One of those states athletes should not use photos of themselves on "Facebook, Twitter, personal web site or any place where AdvoCare is mentioned."
Ohio State has guidelines for student employment. As noted by the Columbus Dispatch’s Tim May, the athlete handbook states all athletes must register employment with OSU compliance in advance.
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SB Nation: Have you ever run across anything like this, involving Amway-type services employing athletes?
Barnes: I have. I’ve previously dealt with student-athlete self-employment in the context of nutritional supplement sales as an independent contractor/distributor. It’s not common, but neither is it uncommon.
SB Nation: So let’s say an athlete takes a job at a used car dealership for the summer, and he or she sells used cars. That’s permissible, right?
Barnes: Student-athlete employment is permissible, correct.
SB Nation: Is there anything in the bylaws that would prevent a commission-based sales job?
Barnes: The NCAA has no rules on student-athlete employment that would preclude commission-based earnings. However, their earnings "may not include any remuneration for value or utility that the student-athlete may have for the employer because of the publicity, reputation, fame or personal following that he or she has obtained because of athletics ability."
When violations occur, the NCAA has recently been imposing a penalty of requiring the student-athlete to repay earnings (less expenses) that occurred while he or she was using his or her name, picture, image or athletic reputation to promote directly a commercial service or product and to remove such prior uses from his or her social media and other promotional tools as a condition of the reinstatement of eligibility.
In none of the cases of previous violations did an institution or the NCAA penalize a student-athlete by withholding him or her from competition.
SB Nation: So what if Braxton got a job at a car dealership and Instagrammed a pic of himself in front of a Honda Accord, telling folks to come see him for a great deal?
Barnes: As a practice, I don’t answer questions that address specific NCAA institutions or NCAA student-athletes. However, I will say this about the rules in general: look at the rule on self-employment and how that precludes promotion or endorsement of businesses as well as commercial services and products that use the student-athlete’s name, image or athletics reputation.
SB Nation: What if self-promotion is inherent to the success of the job itself? Certainly jobs like real estate, auto sales and AdvoCare live and die by marketing your brand.
Barnes: There is no NCAA bylaw allowing student-athletes who are employees of a business to use their name, image or likeness to promote a business’ services or products or the business itself.
However, the NCAA has been granting waivers of that promotional restriction when the self-employment doesn’t use the student-athlete’s status as an athlete for an NCAA institution for promotion of his or her business. They also have a rule that allows for student-athletes with modeling experience prior to enrollment to do modeling (albeit not endorsement) of commercial products.
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That's the sticking point. While Barnes won't speculate on Miller’s specifics, the potential violation may hinge on whether Miller used his name and photograph to promote AdvoCare. And did Miller, compared to a random person, gain a sales advantage because of his status as an Ohio State quarterback?
NCAA bylaw 12.5.2.1 says eligibility is lost if an athlete does either of the following:
(a) Accepts any remuneration for or permits the use of his or her name or picture to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind.
(b) Receives remuneration for endorsing a commercial product or service through the individual's use of such product or service.
Speaking of models, the famously photogenic running back Cam McDaniel sold for AdvoCare while playing for Notre Dame. In fact, his entire family distributes AdvoCare. Unlike Miller, he avoided public identification with the product while playing for the Irish.
Barnes left us a with a recent interpretation from the NCAA that could impact Miller:
Student-Athlete Providing Opinions on a Commercial Product or Service (I)
Date Published: February 20, 2015
The academic and membership affairs staff confirmed that a student-athlete may provide an opinion about a commercial product or service, as long as no individual associated in any manner with the commercial product or service is involved in directing the student-athlete to issue the opinion, and the student-athlete does not receive any benefits from any source in conjunction with his or her opinion.
Logically, it’s not a tough argument that playing quarterback at a major university would help you convince someone to buy a nutritional product.
Ohio State has said only that it's looking into the matter. It’s possible Miller is in trouble not for having a job, but for using his personal accomplishments to best succeed at it.