(Story has been corrected to show Texas A&M receives a $5 million subsidy over the lifetime of its contract and not on an annual basis.)
During the 2000 NCAA women’s basketball tournament on ESPN, Monistat, an over-the-counter vaginal yeast infection treatment, was the presenting sponsor of the halftime report. Analyst Jay Bilas can remember the intro playing for every show all the way through the Final Four in Philadelphia, which he anchored alongside Robin Roberts and Vera Jones.
“It was identical to what we do now when you have a sponsor of the halftime report,” Bilas said of his first time as an NCAA tournament studio analyst. “It wasn’t ‘brought to you by Monistat,’ it was the Monistat halftime report.”
However, under a number of rights contracts at the institutional level, that sponsorship would violate rules some colleges place on their partner providers. At least four Power 5 institutions would expressly prohibit a sponsor like Monistat.
Third-party multi-media rights holders pay schools guaranteed money upfront for marketing, media and licensing rights that they then sell themselves on behalf of the partner institution. Some contracts also include revenue sharing thresholds, bringing in additional money for schools beyond the multiple million dollar guarantees. The agreements between athletic departments and rights holders – which can span more than 100 pages and typically cover comprehensive athletics marketing and sponsorship, as well as intellectual property, hospitality and a vast amount of media- from radio programming to social and digital media and broadcasting – are worth an aggregate of about $500 million a year across the college sports space.
Power Five schools each bring in more than $7 million a year on average from these agreements alone. At the larger schools, the sum can be much more significant.
The deals done and decisions made by the third-party provider reflect the university and its athletic department. As a result, many institutions include specific clauses to protect their brand preemptively by outlining off-limits categories for advertising, marketing or sponsorships. Almost all dictate that rights holders abide by NCAA and conference guidelines when forging partnerships, but many also more clearly outline restricted realms.
These excluded categories typically relate to illegal or vice-connected companies, but some extend well beyond – even to the world of feminine hygiene products. Texas A&M, Oregon, Nebraska, Oklahoma State and potentially more schools categorize sanitary napkins, tampons, panty liners, menstrual cups, period underwear, douches and more in the same vein that they do escort services, sexually explicit materials, sexual enhancement products, erectile dysfunction medications, alcohol, politics, gambling, casinos and tobacco products. One of the contracts – Nebraska’s – goes so far as to list sexual enhancement and feminine hygiene products as one category.
Some also restrict birth control products, often alongside feminine hygiene. The two categories are found together in three of the four contracts that forbid the latter, but they aren’t always a package deal. Oregon restricts feminine hygiene but not birth control products – including oral contraceptives, implants, IUDs, condoms and more – while UConn does the opposite in its contract with IMG College.
The Huskies’ sponsorship standards clause includes “sexual enhancement and/or birth control products” after “adult entertainment and novelties.” Both sections were part of UConn’s original 2008 contract but a 2012 amendment revised the wording of that particular clause and deleted those two categories. The school added both back into the excluded list in its’ 2018 extension. A rep for the Huskies told Sportico that it “was simply an inadvertent omission in the second amendment” and that the school has “never permitted sponsors in these product categories.”
Many of the current contracts obtained by Sportico are extensions or minor alterations of their original terms, several of which date back to the early to mid-2000’s – the same time that Monistat served as a prominent sponsor of the NCAA tournament’s programming.
Bilas was “surprised” to learn that language forbidding feminine hygiene affiliations landed in multi-media rights and marketing deals at the institutional level given the leagues’ less restrictive stance.
“The players would probably be surprised to learn this too,” Bilas said. “When you’re signing away marketing rights for a set amount and wanting to protect brand affiliation, it makes sense to tell [media-rights partners], ‘Alright, we don’t want to do things in this area,’ but that one area particularly strikes me as usual, unnecessary – like something that shouldn’t be of concern.”
This sort of language could also potentially affect NIL opportunities for student athletes. When the NCAA’s Board of Governors voted to allow student athletes to profit off their name, image and likeness in April, the organization’s working group recommended several conditions, including a set of undefined “guardrails” that will likely limit certain types of endorsement deals. Those restrictions could come with some element of school discretion, which could lead to similar restrictive language around student athlete opportunities, something Bilas and others fear.
“I can understand schools’ reticence around marketing birth control products, because of their association with pro-life [and] pro-choice. That’s a political hot potato many universities prefer to avoid,” Bonnie Bernstein, sports journalist and former University of Maryland gymnast, said. “Female hygiene brands, though? That could, conceivably, be a by-product of deal architects – predominantly men – feeling uncomfortable with what is a monthly reality for many women starting in their teens. If Serena Williams can be Tampax brand ambassador, there’s no reason a female college student-athlete shouldn’t be entitled to those same types of opportunities.”
Williams inked a deal with the Procter & Gamble brand in 2009. Announcing the partnership, Tampax said Williams “embodies the energy, independence and strength we celebrate in women.” Former Tennessee and WNBA basketball star Candace Parker was part of Playtex Sport’s ‘Be Unstoppable’ advertisement campaign in 2011. Personal hygiene more broadly has also proven profitable for female athletes. In January, WNBA star turned NBA executive Swin Cash appeared in an ad campaign for Secret women’s deodorant.
Based on contract language, universities across the country would allow the last partnership, as the NCAA does – personal care brand Dove’s ‘Men+Care’ product line serves as an official corporate partner of the NCAA; Degree Deodorant previously served as an official partner as recently as 2016 – but the same doesn’t hold true for Williams or Parker’s deals with tampon manufacturers.
“It’s a part of the systemic sexism in today’s times,” Parker said. “It’s everywhere. It’s written in [contract] language and things like that. There is nothing to be ashamed of in having your cycle or having feminine products. It’s a part of life and it’s something that I don’t know if the entire world is comfortable with – and that’s fine – but at the end of the day, there’s a difference between being comfortable with and completely excluding.”
Parker attributes the appearance of language like this to a lack of diversity – “of gender, race, sexual orientation, religion, everything,” – among decision makers in college athletics and American sports more broadly. Asked about the possibility of similar language taking away endorsement opportunities from female student athletes during the NIL era, Parker noted that what might seem like a minor detail actually has larger implications.
“It’s these types of rules that might be little in what you’re doing, like what is being sponsored by Tampax or Monistat?” Parker added. “But in a sense it’s huge. This isn’t something like erectile dysfunction or something sexual. Women have their cycles every month. These are products women share in common and to basically write that out, it has huge negative effects. It’s going to continue the way in which people look at those products and thus the way they look at women. Maybe people are thinking this is a small thing, but it’s not. This is a big deal in the sense that we can talk about deodorant, but tampons aren’t allowed?”
Bilas said he never once questioned if Monistat serving as a sponsor during the 2000 tournament was or even could be an issue.
“I don’t know why that would be a problem,” Bilas emphasized. “I can tell you when I did that show I got ribbed about it by friends in a good natured way. Nothing more than that, but perhaps that’s part of the thought process. Perhaps we’re still sort of in a knuckle dragging state. But on a list of things that a university would wish not to be affiliated with, that would not make mine.”
Things that typically make excluded lists include tobacco, alcohol, casinos and political advertising. LSU’s contract with Outfront Media and Tennessee’s with Host Communications, now IMG, reflect standard restrictions for schools that do specify – about 50% of institutions — from Sportico’s reading of more than two dozen contracts. Both restrict deals with the aforementioned categories pursuant to University policy, as does West Virginia’s IMG College contract.
The Mountaineers also prohibits gambling (not including the state lottery), firearms, explosives or lethal weapons, adult entertainment, NCAA banned substances, athletic recruiting services and more. It also broadly bans partnerships that are misleading, offensive or somehow violate laws or other University contractual obligations to cover all its bases.
Schools like Texas A&M are as explicit in their prohibitions but cast a wider net. The Aggies’ current contract with Learfield specifically excludes sponsorships that directly promote prophylactics, erectile dysfunction mediation, feminine hygiene products, sexually explicit materials and “other morally distasteful or offensive products or services which are inconsistent with or appropriate for association with a world-class institution of higher education.” Most of the restrictions written into the Aggies’ agreement – which generates a guaranteed $9-13.5 million annually in revenue on an increasing basis in addition to a $5 million capital subsidy – carried over from its 2006 contract with the company.
During the reporting of this story, Texas A&M reviewed its restriction around feminine hygiene products and approved the category for sponsorship, a Learfield IMG College spokesperson for the school told Sportico.
Oregon’s current IMG multimedia rights agreement explicitly prohibits illegal activities, escort services, adult entertainment, male/sexual enhancements and feminine hygiene. The Ducks’ annual guarantee royalty amounts and periodic signing bonus payments were redacted in disclosed documents. The school said the restricted categories are “always an ongoing dialogue.”
Nebraska amended the prohibited categories in its current IMG College contract in the spring of 2020 to loosen restrictions around gambling, lotteries and casinos as well as alcohol-related advertising. All other categories – including “sexual enhancement products and/or feminine hygiene products,” – went unchanged. The restrictions have been in the agreement since 2008.
“My understanding is that the original intent was to protect younger fans from exposure to advertising that is aimed at a more mature audience,” Brandon Meier, senior associate AD for marketing and multimedia at Nebraska, said. Per Nebraska’s arrangement, the provider can bring potential sponsorships from a restricted category to the athletics department for review. Meier said Nebraska has not reviewed any proposals to date. “Our current agreement expires in June of 2021, and all of the category restrictions will be reviewed at that time.”
Nebraska will receive upwards of $13 million annually in a guaranteed rights fee for the remainder of its contract, in addition to 50%-70% of net revenues on a sliding scale up to $19 million.
Oklahoma State similarly updated the language in its’ 2019 agreement with Learfield to prohibit vaping products, medical marijuana and recreational drugs, while restrictions around erectile dysfunction medication, sexually explicit materials and feminine hygiene products remained. The contract guarantees the school a royalty fee of $8-9 million for the remainder of the deal, as well as a percentage of split revenue up to $12-17 million depending on the year.
Around 60% of collegiate multi-media contracts are up for renewal or renegotiation in the next two years – during which, many already expect that institutions will revisit contract language in light of COVID-19. Oregon’s current agreement expires one year after the Huskers in June 2022, while both Oklahoma State and Texas A&M have a number of years remaining.
“As you migrate across the country, you’re going to have different sensitivity points,” Dan Etna, co-chair of Herrick, Feinstein LLP’s Sports Law Group, said. “That may influence what colleges feel is appropriate to protect the brand and the image of the school. To the extent that there are imbalances – perhaps that’s [happened] over time or may be indicative that, until fairly recently, the college athletic director ranks, which are usually where you’re going to get tasked with these kinds of agreements, have been male dominated. There’s some gender bias that’s probably become embedded in these agreements as well and in how these lists came to be.”
Learfield IMG College confirmed that while it begins with limited restrictions in its standard contract language and emphasized that the final clause is a collaborative product, individual partner institutions put forth additional parameters. Feminine hygiene products are not included in the company’s standard list. As Learfield IMG College noted, in order to fulfill its responsibility to university partners, the company needs as many open categories as possible. Restricted categories limit ability to drive revenue.
“When it comes to hygiene, there’s a level of comfort that universities and multi-media rights holders often disagree on when it comes to what can be associated with the brand,” Dr. Daniel Kelly, Director of Graduate Programs at the NYU Tisch Institute for Global Sport, said. “For some universities, it’s an explicit preference. They may not see feminine hygiene or even another personal hygiene product in those same classifications as a bank or a car company or the majors like soft drinks or snack foods even though they’re household items.”