Collegiate athletes have NIL rights, but what about high school athletes?
Much of the conversation around name, image, and likeness (NIL) has been about collegiate student athletes, but what about high school student athletes? Do they stand to benefit from similar opportunities?
On July 1, 2021, the National Collegiate Athletic Association (NCAA) suspended its NIL rules for “all incoming and current student-athletes” in all sports. Under the NCAA’s interim policy, a high school student athlete would not jeopardize their NCAA eligibility as a result of earning compensation from the use of their NIL.
State regulations
Most states have proposed or passed legislation that allows collegiate student athletes to benefit from their NIL but few bills specifically address the rights of athletes while they are still high school students. As of the date of this article, California is the only state with a law that expressly permits high school student athletes to take advantage of NIL opportunities without impacting their eligibility to compete at the high school level. In contrast, Illinois, Mississippi and Texas NIL regulations prohibit student athletes from engaging in NIL activities before the date on which the student athlete enrolls at a college or university. However, it is not clear whether this rule applies just to high school student athletes within these states or if this has implications for high school students from out-of-state (e.g., California) that wish to enroll at a postsecondary institution in Illinois, Mississippi or Texas. In their silence on the matter, the remaining states have left NIL rules up to high schools and their affiliated sport associations.
High school athletic associations
Without express permission or prohibition at the state level, the NIL rights of high school student athletes are left up to the individual high schools and/or governing athletic associations that establish eligibility requirements for high school sports. For example, the National Federation of State High School Associations (NFHS), which is the body that writes the rules of competitions for most high school sports and activities, released a statement that prohibits current high school student athletes from earning money from their athletic reputation. If a high school student athlete attending a school whose sport is governed by an athletic association that prohibits NIL-related compensation uses their athletic reputation for monetary gain, that student may be ineligible to compete at the high school level. (Note: They may still be eligible to compete collegiately.)
What should high schools and their students do next?
Before engaging in any NIL opportunities, high schools should encourage their student athletes to work with their school advisors and counselors to understand relevant state laws, athletic association rules and any individual institutional policies. To better understand implications for one’s individual situation, student athletes may wish to consult with a qualified attorney.
Recruiting considerations
The recruiting period can be a challenging time for high school student athletes and postsecondary institutions alike. High schools students are navigating unfamiliar territory while institutions are trying to manage the ability to attract top talent while also maintaining compliance with recruiting rules. The introduction of NIL to collegiate athletics has created new challenges to recruiting that will be discussed in an upcoming article. Stay tuned to understand more about rules governing improper inducements and red flags to look for in the NIL era.
Baker Tilly can help
Our K-12 and higher education advisory practices collaborate to help your secondary or postsecondary institution take a proactive approach to evaluate the current state of your policies, processes, internal controls and definitions related to athletics and NIL to identify opportunities to align with the new changes.
