Barstool's Next Move: A Mandatory Fyre-Esque Social Campaign

We all remember Fyre Festival, AKA the Greatest Party That Never Happened (as Netflix described it). Although Fyre is now infamously known for defrauding investors out of $26 million dollars, its now-jailed founder and CEO, Billy McFarland, and rapper Ja Rule, did do something right; they masterminded an ingenious marketing campaign.

Tickets for the 2017 music festival cost anywhere from $1,000 to as much as $12,000 – more if you bought a package deal.

And yet the fraudulent festival sold out in just 48 hours. Why? Because its organizers utilized social media and online influencer culture like never before.

Fyre flew films crews, models and digital influencers to a remote island in the Bahamas where they produced an epic promotional video. Those hired to be featured in the video included Kendall Jenner, Bella Hadid and Emily Ratajkowski, to name a few. The trio and another 250 influential individuals posted photos on-location to Instagram and Twitter to their millions of followers. Jenner was reportedly even paid $250,000 for a single Instagram post.

(Photo Credit: The Fashion Law)

With every photo and video, Fyre looked more and more like a luxury dream party and an exclusive, must-attend event. And the global online community bought into all the hype.

Unfortunately for the scarred ticket holders – and the influencers – they ultimately discovered that Fyre Festival was more like the Hunger Games, and not Coachella like they thought. See Exhibit A below: the delicious dinner served.

But the defunct festival proved one thing; traditional advertising was no longer going to cut it, and one sports media company had been taking note.

Enter Barstool Sports.

Barstool, led by Dave Portnoy, has created a global empire – drastically growing their fan base without the use of traditional marketing tactics. The brand has become so popular due to its free publicity and social media campaigns, which have created viral videos and stories spread across all media outlets.

With the NCAA finally announcing that college athletes can earn compensation for the use of his or her name, image and likeness (NIL), Barstool identified yet another unconventional marketing opportunity: Barstool Athletics.

Portnoy posted a video on Twitter, announcing Barstool Athletics and explained how the idea came to fruition.

"I didn't give it a ton of thought, until a couple of hours ago when Adelaide Halverson, she is a volleyball player [from] Jacksonville State DM'd me. She was like 'Yo I want to be the first Barstool Athlete."

He later went on to say,

“Barstool Athletes Inc is the most barstool thing ever. No thought put into it. No clue what we were doing. And 2 hours later the most powerful student athlete organization in the country. Still no clue what’s happening. #fortheplayers #barstoolathlete.”

And now, more than 140,000 athletes across the country have submitted applications to become “Barstool Athletes.” But is Barstool Athletics really #fortheplayers or is it just Barstool orchestrating one of largest marketing pushes we’ve ever seen?

A few days ago, Barstool started sending out branded merchandise to thousands of collegiate athletes enrolled in their program. This is when it starts getting interesting…

Many might not realize it but, depending on specific state law, an athlete may actually lose his or her eligibility by entering into a deal that is clearly not commensurate of the fair market value of the services provided (i.e. A $5 Million sponsorship for one social media post).

As we learned from the Lululemon Team Program, a company can’t just send college athletes their products solely because they are college athletes. The athletes MUST do something in return. If they don’t, such athletes and the businesses are violating NCAA rules and potentially state law.

It’s not Lululemon who told us that. It was the NCAA and Oklahoma. Everyone in the NIL world knows this, so Barstool must too. You'd hope...

From the NCAA’s interim NIL policy: “While opening NIL activities to student-athletes, the policy leaves in place the commitment to avoid pay-for-play and improper inducements tied to choosing to attend a particular school. Those prohibitions would remain in effect.”

So is putting "Barstool Athlete" in your bio enough? If you're looking at Lululemon-- they played it safe and appeared to ask their athletes to go one step further, actively posting in support about the company. See below:

This combination appears to have been acceptable to the NCAA and affected schools. However, keep in mind that Lululemon has a mere fraction of the athletes that Barstool has. Assuming Barstool goes the Lululemon route, a logical option all things considered, it means that Barstool Athletes that receive any sort of product from Barstool could soon be asked to actively post about it across their social media channels. Otherwise, once again, the athlete could be viewed as directly engaging in pay-for-play and would be considered an NCAA and NIL violation. Portnoy is under a microscope now... he SHOULD play it safe...

Interestingly, the Barstool Athlete application explicitly requires the individual “to add Barstool Athlete to [their] social media bios.” By participating in the program, the athlete is also agreeing that they will comply with all relevant laws and policies relating to NIL. This additional language is why Barstool may have to follow Lululemon's lead and ask for a further quid pro quo.

Needless to say, simply calling yourself a "Barstool Athlete" might not be enough anymore. As Barstool continues to lean into the gambling side of their business, more questions arise as to whether they can even partner with schools. If schools weren't on red alert about this potential compliance issue, they sure are now.

Late last night, Sports Attorney and Professor at University of Florida Law, Darren Heitner, announced that the first Division 1 program reportedly told athletes to cease all NIL involvement with Barstool Sports.

The question that remains is whether Louisville’s is an outlier... or just the first domino. And, moreover, what - if anything - Barstool can do to fix this impending problem.

While Barstool may not have an epic promotional video like Fyre Festival (yet), with thousands of college athletes already forced to push the Barstool brand on their social media, "Barstool Athlete," it certainly has garnered significant attention and engagement. This next step would reach an entirely new, Fyre, level. And this seems logical assuming Barstool has learned anything from Lululemon.

While the chief marketing mastermind behind Fyre Festival is in prison, the team at Barstool Sports is working overtime, making waves, and making money. And Barstool stands to cash in huge if Portnoy can just convince athletes to promote the company in exchange for free merch.

Stephanie is a recent graduate of New York Law School and a law clerk at Geragos & Geragos. You can find her on Twitter @SWeissenburger_ and Instagram @Steph_ExplainsItAll