03-18-2019  8:53 pm      •     
Roger M. Graves, Florida Coastal School of Law
Published: 10 January 2012

Near the end of the Alabama- LSU National Championship game, I looked at All-American and Heisman Trophy finalist Tyrann Mathieu sitting forlornly and lonely on the bench, and wondered whether he knew that his "Honey Badger" nickname was a specialty drink - a Jack Daniels honey brew reportedly infused into a new beer product.  At that moment, it was quite likely being slurped in both LSU's home town of Baton Rouge and New Orleans, the site of the game.  I wonder if he knew that the drink is related to a budding joint venture between his school and a for-profit microbrewery near the LSU practice field in which he toils. The Tin Roof Brewing Company announced its partnership with LSU to market a light ale packaged in the LSU school colors. LSU chancellor Mike Martin reportedly supports the venture, potentially making LSU the first major university to officially license a school beer.

The beer itself, called Bandit Blonde Ale, is named after a famed defensive unit from the LSU 1958 national championship team, and it is the base ingredient for the "Honey Badger." Most of America had never sipped the term until they were exposed to Mathieu's scintillating punt returns, interceptions, and saliently, a honey colored Mohawk strip in his hair style. The phenomenon left us collectively salivating for more. During several games, including the National Championship on college football's biggest media stage, Mathieu was repeatedly called "The Honey Badger." Needless to say, there are plenty of LSU licensed Honey Badger t-shirts, sweatshirts, and other beer belly cover ups from which LSU gains a royalty. That royalty, I suspect, does not trickle down in any significant way to the teenage star that generated the buzz – pun intended.  

As the Honey Badger walked off the field I also wondered whether he was going back to a dorm or apartment, living on a shoestring like most African American major college football players. Born in New Orleans, he is one of five children. Mathieu's father has been incarcerated every day of his Tyrann's life. During his formative years, Tyrann's mother was not around much so he was raised by his grandparents. I wonder if he knew everyone seems to be making money from the buzz creator except the creator.

Why not just create a trust fund for Tyrann's post-graduation use—and his grandparents, if he likes. This is not a radical concept. Trust funds have been in existence since Moses was a baby. It is a more equitable way of dealing with profitability in college than a blanket waiver of all related intellectual property rights by the athlete especially when he is in financial need. As a practical matter, the college football player has no real alternative than to play the minor league sport of college football if he wants to play professional football. So he has no choice but to sign the waiver as part of gaining NCAA eligibility.  A trust fund is just what it says: a fund held in trust for someone else. The university could hold a reasonable proportion of the revenue generated from the use of a player's intellectual property (like the Honey Badger nickname). LSU is to receive a 10% royalty from the beer, if approved by its governing board. Why not put a royalty amount in trust for the one who is most responsible for generating the revenue?

 Royalties need not only be for "royalty" (like multimillion dollar universities). They can be shared with those who create the revenue, even if they are students. It is only a timing event for receipt. We do this all the time when determining if there is a taxable event on previously earned income. Deferred compensation packages and stock option schemes are just two examples. The issue is not if you are entitled to the money, just a matter of when. If we determine players are entitled, it is fundamentally no different here.

Some say the best way to rob a bank is to own one. Then you can receive an excessive bonus and even make out fine with stock options during bailouts or bankruptcy via Chapter 11 reorganizations. It appears the best way to profit from college players is to administrate them. We can change that if NCAA and its member institutions demonstrate the will to do so.

The best shot may just be a fandom uprising. But what are supporters going to do, boycott the games? We seem to love the school more than the people who play for them. So it will be interesting to see whether LSU students and the Bayou community mount a protest to the governing board prior to upcoming final approval of the beer joint venture.

And will LSU voluntarily vote against its own economic interests? Will the NCAA make them? Since LSU cannot sell alcohol inside the stadium, the chancellor wants to profit from alcohol outside the stadium.  LSU had over 90,000 people inside the stadium for each of its 6 home games this season. The one game they played in West Virginia, where alcohol sales were allowed, brought revenue of over $120,000, though Bug Lights were sold out by halftime. The math (and revenue) is alluring.

If LSU's board approves the deal, what semblance of fairness is left to its amateurism principles? The justification for preventing professionalism of players is the nonprofit status of educational institutions. The endeavor of educating students is not supposed to be profit first, educate students as a byproduct. And because of that hallowed environment, the players too are not allowed to profit since they too are in school for education. The more the institution profits at the expense of the players the less justification it has to prevent profits to those players. So if a school profits from a player's nickname, and what's worse, does so by fostering and profiting from booze among students, it loses its moral high ground.

Roger M. Groves is a professor of law at Florida Coastal School of Law and Director of the Center for Sports and Social Entrepreneurship. Follow him at [email protected] and http://center4players.com

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