The Fight For NIL Rights Reaches A New Class: High Schoolers
Where is the outrage over high school athletes who are being denied their NIL rights?
Mikey Williams is expected to earn millions of dollars as a high schooler. The basketball phenom with over 5 million followers across various social media platforms is immediately free to exploit his name, image, and likeness (NIL) rights because he will not be under the governance of a high school athletic association that restricts his ability to earn money. Instead, he will perform for a program called Vertical Academy, which will boast a club team that plays showcase games against prep schools. Williams will earn a high school education from the private school Lake Norman Christian while performing against top competition around the United States, earning off-court compensation with the assistance of a sports agent.
Williams' situation probably sounds very similar to what college athletes across the country have experienced since July 1, 2021, when the NCAA for the first time decided to shed its bylaw that prohibited all college athletes from earning money related to their NIL. As of July 1, college athletes have been free to take advantage of such NIL rights as long as they remained in compliance with state laws that are effective in the states wherein their colleges are situated and, in the case where they play in a state without an effective NIL law, abide by their respective school NIL policies. The NCAA additionally made it clear that its bylaws continue to prohibit pay-for-play compensation as well as impermissible inducements for athletes to attend or remain at universities.
While the NCAA has altered its restriction and remained relatively hands-off with college athlete NIL activity since July 1, it was reluctant to make its modifications have a material effect on high school athletics. Instead, the NCAA declared that the impact of its interim NIL policy on prospective college athletes, including high schoolers, is that those prospective college athletes may engage in the same types of NIL opportunities available to enrolled college athletes without negatively impacting their NCAA eligibility. However, the caveat is that the NCAA refused to opine as to whether such NIL activity could separately jeopardize a college athlete's high school eligibility and instead referred high school athletes to consult their high school athletics associations regarding questions about their ability to compete.
This issue does not concern Mikey Williams. As mentioned, he will not be bound by the rules of any high school athletic association. But what about the myriad other athletes who attend public or private high schools that are members of various associations with bylaws in place, which either overtly restrict NIL activities or are not clear as to whether a high school athlete will jeopardize his or her eligibility based on earning compensation from endorsing brands? Further, some state laws should concern high school athletes who are considering, for the first time, the possibility of earning money off of their fame.
Where is the frustration and criticism from people who so vehemently argued that college athletes should be treated the same way as all other Americans who enjoy the right to earn money from their NIL? Why should high school athletes not have the same right of publicity?
California charges ahead with NIL rights for high school athletes.
Near the end of the first month of NIL for college athletes, it has become quite clear that one state has a competitive advantage, and it is not based on the treatment of college athletes. The State of California appears to be the only state in the country where it is clear that high school athletes can benefit from the use of their NIL in commercial endeavors. On July 2, a California Interscholastic Federation (CIF) spokesperson confirmed to 247Sports that high school athletes in the state can profit from their NIL as long as they are not using their high schools' names or logos in the commercial activity. On July 22, I received the same confirmation with the added guidance that high school athletes should always also check with their schools to ensure that the schools do not have their own rules that limit NIL opportunities.
In speaking with the CIF, I learned that the federation's approach has always been to allow high schoolers in the state to enjoy their NIL rights to the fullest extent possible. One justification for that has been the sheer number of child actors in the state and the reluctance to in any way render an individual ineligible to participate in high school athletics due to his or her fame. It is incredibly difficult to determine whether athletes are earning compensation based on their athletic fame, entertainment fame, scholastic achievement, online personalities, etc. Other high school athletic associations across the U.S. should take note of that fact.
However, it is my understanding that no other state high school athletic association has come out thus far to proclaim that high school athletes can enjoy NIL rights. Instead, many states have made it quite clear that high school athletes are forbidden from partaking in commercial opportunities, either based on law or associations' bylaws.
Texas, Mississippi, and Illinois take approach of making high school NIL illegal.
Texas and Mississippi were among the first states to pass NIL bills with effective dates of July 1, 2021 and have them signed into law by their respective governors. They are also two of three states that currently boast NIL laws that prevent high school athletes from participating in NIL activities.
Texas' NIL law states that no individual, corporate entity, or other organization may enter into any arrangement with a prospective college athlete relating to the athlete's NIL prior to the athlete's enrollment in an institution of higher education. Mississippi's NIL law says that no athlete shall enter into a NIL agreement or receive compensation from a third-party licensee relating to the NIL of the athlete before the date on which the athlete enrolls at a postsecondary educational institution. Illinois' NIL law likewise prevents athletes from entering into publicity rights agreements or receiving compensation from third-party licensees relating to NIL or the voice of the athletes before the date on which the athletes enroll at postsecondary educational institutions.
It is unclear why Texas, Mississippi, and Illinois decided to take the extra step of expressly forbidding high school athletes from participating in NIL activities when other states including Florida, which was the fist state to sign a NIL law with an effective date of July 1, 2021, stayed silent on the issue. Theoretically, high school athletes should have the same publicity rights as college athletes -- rights that all other Americans freely enjoy. It is incomprehensible that one could argue that college athletes were unfairly prevented from enjoying these basic rights while another class of individuals, high school athletes, must remain shackled. If college athletes should never have had these rights taken away, then should not the same be true for high school athletes?
Other states with effective NIL laws decided to remain silent on the issue of high schoolers having NIL rights, similar to the approach taken by the NCAA. Arguably, this was a mistake and states should have gone the extra step to affirmatively allow high schoolers within their borders to also benefit from their NIL. Alabama's NIL law merely provides guidelines for postsecondary institutions and says nothing about the rights high school athletes in the state possess to profit off their NIL. Florida's NIL law similarly does not touch on the issue of high school athletes participating in NIL activities. The same is true for Georgia's NIL law. Interestingly, Arkansas' NIL law, which becomes effective January 1, 2022, specifies that it does not authorize any prospective college athletes to negotiate or receive compensation for the commercial use of their publicity rights prior to their enrollment in an institution of higher education, but it also does not expressly prohibit that type of activity either.
High school athletic associations have been slow to cause change.
While Mikey Williams has figured out a way to avoid the overbearing restrictions of high school athletic associations across America, not all athletes outside of California will be as fortunate unless change comes quickly. Many of these athletic associations expressly forbid high school athletes from benefitting from their athletic fame, which the executive director of the National Federation of State High School Associations interprets as banning any NIL activity.
For instance, while Alabama's NIL law does not prevent high school athletes from earning money, the Alabama High School Athletics Association prohibits them from profiting off of their athletic fame should they wish to retain their eligibility to participate in high school athletics. The Ohio High School Athletic Association says that an athlete forfeits amateur status by capitalizing on the athlete's fame by receiving money, merchandise, or services of value, and that "capitalizing" on "athletic fame" is "based in whole or in part upon the notoriety the athlete received through his/her athletic skills and achievements." The New Jersey State Interscholastic Athletic Association has said that an individual who "takes or has taken pay, or has accepted the promise of pay, in any form, for participation in athletics or has directly or indirectly used his/her athletic skill for pay in any form shall not be considered an amateur and will not be eligible for high school interscholastic athletics in the State of New Jersey."
Even in a state like Alaska, which does not have a NIL law, its athletic association -- the Alaska School Activities Association -- says that a high school athlete "forfeits amateur status and eligibility in a sport sanctioned by the Association by capitalizing on athletic fame by receiving money or gifts of monetary value in exchange for endorsements, participation in commercials, advertisements or the like."
In other states, the rules are not as clear. For instance, in Colorado, the Colorado High School Activities Association's bylaws are ambiguous regarding whether athletes will have their amateur statuses stripped if they decide to profit off of their fame. The Colorado High School Activities Association Handbook includes a bylaw that states athletes "may not compete for or accept cash for playing some part or all aspects of a sport” and that they are prohibited from signing or committing to an agent. That appears to be a pay-for-play restriction similar to the guardrail put in place by the NCAA, but not necessarily a restriction on NIL activities that are unrelated to performance. Similarly, Idaho's High School Activities Association (IHSSA) Handbook prohibits high school athletes from "competing for money or other monetary compensation." While the spirit of the rule may suggest that the IHSAA intended to prohibit high school athletes from profiting off their fame, there is enough ambiguity to preclude a definitive finding that the IHSAA would deem NIL activities to be a violation, putting the athletes at risk of forfeiting their eligibility to participate in high school athletic competitions.
The distinctions between states like Alabama, Alaska, Ohio, and New Jersey as compared to Colorado and Idaho explains why the map at the top of this article classifies Alabama, Alaska, Ohio, and New Jersey as states where high school athletes should stay away from NIL activities for the time being, while Colorado and Idaho are less clear. Overall, additional clarity is necessary for high school athletes in all states, except for California where it is clear that high school athletes are free to participate in NIL activities as long as their schools do not have separate restrictions in place.
There are efforts underway to modify NIL rules for high school athletes.
Some state high school athletic associations have begun to take notice of the clear advantage that California high schools will have unless changes are made to existing bylaws under this new ecosystem where college athletes across the country benefit from NIL rights. I have personal knowledge that at least one state is in the process of revising its rule that currently says high school athletes will forfeit their athletic eligibility if they capitalize on their athletic fame by receiving compensation or gifts of monetary value. The expectation is that the rule will be modified to be similar to California's regulation, which does prohibit high school athletes from using the marks of their high schools in any NIL activity.
Modifications to high school athletic association bylaws should be a common sense and easy decision. It may be more difficult for legislatures in Texas, Mississippi, and Illinois to amend their NIL laws, which unreasonably forbid high school athletes in the state from earning compensation from their NIL while college athletes in those same states are now able to benefit from same.
What has become clear since all college athletes began benefitting from NIL rights is that while one battle has been won -- giving back rights to college athletes that should have never been taken away from them -- there are still issues in the world of rights of publicity that exist. A glaring one is that most high school athletes in the U.S. either clearly cannot benefit from their NIL or need clarity before risking their eligibility by partaking in NIL activity. If Congress ever act