Like most fans of the Clemson University football team, Bandy has heard the Tigers’ coach repeat “Best is the standard,” “The fun’s in the winning,” or “It’s only unthinkable if you don’t think it.”
This one was different.
This one created a new revenue stream but raised questions about who can dip their toes in it.
A simple phrase helped Swinney expand his share of the $4 billion collegiate licensing industry. Coaches, universities and businesses can capitalize directly on the popularity of athletic programs. However, strict NCAA guidelines prevent players and parents from personally monetizing their name, image or likeness. Despite extensive court cases to revise those guidelines, change has been a painstaking and unpromising process.
At that moment, Swinney was not thinking about NCAA incongruities or pending litigation. At that moment, he was not thinking about advancing his personal brand.
At that moment, after Clemson sealed a 24-22 victory against Notre Dame on Oct. 3, Swinney unleashed his emotions in a live television interview. At that moment, he did not suspect less than a week later his legal counsel would be applying to protect his words as a registered trademark.
At that moment, yelling hoarsely over exuberant fans who swarmed on the rain drenched field, Swinney simply repeated what he told his team before the game.
“We give you scholarships. We give you stipends and meals and a place to live. We give you nice uniforms. I can’t give you guts. I can’t give you heart,” Swinney said. “And tonight, it was BYOG – bring your own guts.”
Before Swinney walked to the locker room, the phrase had become a slogan.
It spread virally on social media. It was looped continuously on Twitter, Vine, Instagram, Facebook, YouTube and ESPN.
That is when Bandy knew it was not just another catchphrase. It was a new line of T-shirts.
Bandy is co-owner of Tigertown Graphics, a design and printing company with a storefront in downtown Clemson. After Swinney’s phrase went viral, fans bombarded the company’s phone lines, inbox and social media feeds asking about BYOG apparel.
“You get the reaction from the fan base on whether something is worth printing,” Bandy said. “By Sunday morning, the demand was through the roof.”
Tigertown Graphics has longstanding licensing agreements with Clemson and Swinney. That permits them to sell merchandise featuring the university’s registered trademark paw logo and items designed exclusively for Swinney’s All In Team Foundation. A portion of the profits from those sales are funneled back to the trademark owners.
Before Tigertown Graphics offered BYOG shirts to the public, Bandy contacted Swinney to ensure he approved the use of the slogan. Once consent was granted, Tigertown Graphics added the design to the website.
Bandy estimated that through the past six weeks, Tigertown Graphics has sold nearly 15,000 BYOG T-shirts – likely even more by now.
Yet Tigertown Graphics is not the only apparel company seeking to capitalize on Clemson’s quotable coach.
Three days after Swinney’s impromptu interview, FanBase Sports Pro, an apparel manufacturer based in Athens, Ga., applied with the federal government to register trademarks for “BYOG” and “Bring Your Own Guts.” The registration would permit the company to print and sell the phrases on athletic apparel, including shirts, pants, jackets, footwear, hats, caps and uniforms.
Three days later, Swinney’s company, Katbo, LLC, submitted applications to register trademarks for “BYOG” and “Bring Your Own Guts” to use on stickers, decals, beverageware, towels, belts, dresses, hats, jackets, shirts, ties and charitable fundraising services.
Swinney said his agent suggested the trademark registration.
“It was just one of those things that kind of took off. He thought it was a good idea, and I said ‘OK,’” said Swinney, whose company also has registered trademarks for his names “Dabo” and “Dabo Swinney.”
“Given the advantages of getting it registered, you’re almost an idiot, if you have any kind of a valuable designation, not to register it,” said James Bagarazzi, an attorney with Dority & Manning, an intellectual property law firm in Greenville.
Clemson University is one of Dority & Manning’s clients but not Swinney personally. According to Bagarazzi, the registration process usually requires a minimum of nine months, but registering BYOG will help Swinney monetize his moment and regulate how it is used.
“When you use a trademark, it basically has your reputation associated with it,” Bagarazzi said. “You want to protect your reputation. So, a trademark registration is sort of a sword and a shield.”
According to Brad VanAuken, Chief Brand Strategist for The Blake Project, $209 million in licensing royalty revenues were generated last year from $3.88 billion in retail sales of collegiate merchandise. That includes hats, T-shirts, jerseys, flags and bumper stickers.
Last year, the Clemson athletic department received $4.78 million in revenue from royalties, licensing, advertisements and sponsorships, according to a copy of the university’s financial report to the NCAA. The football program was credited with generating $468,311 of that total.
“Sports and collegiate licenses still continues to be one of the most reliable sectors in the licensing industry,” VanAuken said. “People in the limelight, coaches and players, have brands, whether they know it or not, whether they leverage their brand or not.”
In January 2014, Swinney and Clemson agreed to an eight-year contract extension. In addition to his base salary of $3.3 million this season, a $500,000 annual licensing fee was added to compensate Swinney for the school’s use of his name, image and likeness. That is in addition to any licensing or name, image and likeness compensation he earns outside his contract.
Tigertown Graphics’ cheapest BYOG shirt costs $14.95. Using Bandy’s estimate of 15,000 sold, the company has grossed more than $224,000 off the phrase.
“It’s been gangbusters,” Bandy said. “Our downtown business is directly tied to football. When Clemson football is doing good, we’re doing good.”
These past few months have been extremely good.
Clemson finished the regular season at No. 1 and captured the Atlantic Coast Conference championship. The Tigers are slated to meet Oklahoma in the playoff semifinal Dec. 31 in Miami. The Tigers have been featured in prime time television broadcasts, on the covers of magazines and on nationally syndicated radio shows. The awards have been rolling in, too.
“I try to represent Clemson and build our brand,” Swinney said. “That’s been a goal from day one. I think we have built our paw, that brand, nationwide.”
Swinney, the university and retailers may profit directly from the enhancement of that brand, but not players and parents.
As Swinney emphatically reiterated in his BYOG declaration, players are given scholarships, room, board, books, apparel, travel and now personal stipends to cover additional costs. When players sign a scholarship, they essentially sign a contract to exchange their services for those items, and those items only.
They also sign away rights to their name, image and likeness. Thus, regardless of how bright the spotlight shines on them this season, the NCAA prevents Clemson players from profiting off their personal prominence.
They cannot sell their autographs. They cannot accept appearance fees. They cannot peddle their own T-shirts.
Clemson running back Wayne Gallman occasionally has worn a custom shirt featuring his nickname “Wayne Train,” which he earned from trampling tacklers. According to Bandy, if Gallman licensed those shirts, they would be just as popular as the BYOG line.
“It would do just as well, if not better,” Bandy said, “especially with a high-profile, popular athlete with a catchy nickname.”
Yet, Bandy knows the instant he or Gallman sells one of those shirts, Gallman would be ineligible.
According to a report from USA Today Sports, the parents of Louisiana State running back Leonard Fournette started an online business last year to sell shirts and hats that featured “BUGA Nation,” an acronym for “Being United Generates Attitude” Fournette and friends created while in high school.
According to the report, Leonard’s mother, Lory Fournette, was forced to shut down the business once the NCAA discovered it. According to the federal database, Lory Fournette submitted applications to register trademarks for “BUGA Nation” and “Being United Generates Attitude” on Nov. 2.
“Right now, college sports are considered amateur,” VanAuken said. “Players sign agreements that say ‘I’m not a professional athlete. I will not be paid for it.’ Athletes at a college level do give up revenue. Whether it’s fair or not, I can’t say, but that’s what their agreement is.”
VanAuken estimated that a popular player with a professional licensor could generate between $10,000 and $100,000 per year in royalties from a personal brand.
“If you’re the most elite, most well-known college athlete who has a huge powerful marketing person behind him or her, he could make a couple million a year on stuff,” VanAuken said. “It can happen, but it’s not going to happen under NCAA rules right now.”
Six years ago, former UCLA basketball star Ed O’Bannon filed a class-action lawsuit against the NCAA, claiming its policies on name, image and likeness rights violated antitrust laws. In September, the U.S. Ninth Circuit Court of Appeals upheld U.S. District Judge Claudia Wilken’s decision supporting that claim.
However, the appellate panel vacated Wilken’s injunction from August 2014 that would have ordered NCAA schools to pay football and men’s basketball players $5,000 per year in deferred compensation for use of their names, images and likenesses. In the opinion, Judge Jay Bybee wrote offering players “cash sums untethered to educational expenses is not minor; it is a quantum leap.”
“Once that line is crossed, we see no basis for returning to a rule of amateurism and no defined stopping point,” the opinion stated. “At that point, the NCAA will have surrendered its amateurism principles entirely and transitioned from its ‘particular brand of football’ to minor league status.”
Some dissenters argue that players should be free to monetize their personal brand, independent of the scholarship compensation package and not governed by the universities or the NCAA. That model would allow Clemson star quarterback Deshaun Watson to broker a deal to shoot commercials for a local car company, linebacker Ben Boulware to endorse an energy drink or Gallman to sell Wayne Train T-shirts.
It would allow college players, many of whom will never advance to careers in professional football, to capitalize on their personal brands during the peak of their profitability – ideally without altering players’ obligations and expectations of their scholarship agreement.
Detractors argue that such a free market will facilitate corruption and undermine the value of the current student-athlete compensation structure. The NCAA has granted governing autonomy to the Power 5 conferences — the ACC, Southeastern, Big Ten, Big 12 and Pacific 12 — and Notre Dame to revise legislation to address the changing financial landscape of college football.
Revenues have risen rapidly, primarily from television rights deals. According to a report from CBS Sports, the ACC reported $302.3 million in total revenue during the 2013-14 academic year. The league enjoyed a 35 percent increase to $197.2 million in television revenue. The ACC reported that Clemson received $21.3 million from the league that year.
Conversely, expenses have risen with stipend payments and the facilities arms race. Like most major Division I programs, Clemson began offering cost of attendance stipends to each scholarship athlete in August. According to Clemson director of athletics Dan Radakovich, the additional benefit will cost the school approximately $925,000 this year. Last month, Clemson broke ground on a $55 million, 140,000-square-foot football operations facility that will feature a barber shop, arcade, bowling alley, laser tag, miniature golf and a sand volleyball court.
Those amenities entice recruits but also sweeten the scholarship package for current players. Autonomy has allowed schools to upgrade dining options. Apparel contracts provide players with athletic and casual footwear. That is all in addition to the full cost of attendance.
According to the Clemson financial aid office, the estimated cost of attendance for this school year is $27,890. Even without factoring in inflation, through a four-year scholarship, a Clemson football player would earn $111,560.
“Nobody ever talks about the value of an education when you get into that stuff,” Swinney said. “These players are getting a whole lot. It’s the best it’s ever been, and it certainly can still be improved. I think the autonomy has come up with some common sense things that should’ve been changed a long time ago. But hopefully there are some other things they can improve on.”
Swinney suggested collegiate administrators could allow travel allowances for players’ families and could possibly explore adjustments in the use of players’ names, images and likenesses.
Swinney can recognize the value in an athlete’s brand. He also can appreciate how easily that value fluctuates.
His own personal brand is lot more popular now. BYOG may not have been as profitable five years ago when Clemson was 6-7.
“I guess we’ve got a good team, so it’s like E.F. Hutton, when you say something, all of a sudden it’s a bigger deal,” Swinney said. “I had a lot of good things in 2010, and nobody would listen. Y’all missed some good stuff in 2010.”