By Joseph M. Ricco, IV
The standstill between the Florida High School Athletic Association and the evolving landscape of Name, Image, and Likeness (NIL) appears to be concluding. This comes as the result of a new proposal by the FHSAA, which would grant high school athletes the ability to monetize their likeness through NIL deals, barring certain restrictions. With 33 other American states and territories already on board in allowing high school NIL transactions, this evolution reflects a significant shift in recognizing the value and rights of young athletes to monetize their talents. Utilizing expert analysis, this article delves into the impact of NIL on high school sports, underscoring the challenges, opportunities, and lessons learned as more states move towards a unified approach to athlete compensation.
Historical Context of NIL
The narrative of Name, Image, and Likeness rights in American sports has seen a significant transformation, particularly within the collegiate arena before trickling down to high school sports. The journey began in September 2019 when California passed the groundbreaking “Fair Pay to Play Act,” setting a precedent for other states to follow. This act, along with the NCAA’s eventual decision in June 2021 to adopt an interim NIL policy, underscored a shifting belief that acknowledged athletes’ rights to profit from their brand. Notably, the NCAA’s resistance against NIL crumbled in the face of legal challenges, such as the NCAA v. Alston antitrust lawsuit, which further eroded its stance on amateurism (ajc) (Eccker Sports Group).
The landmark shift towards acknowledging NIL rights in collegiate sports set a precedent that experts like Peter Goplerud, a tenured attorney and sports law professor, saw as a precursor for similar evolution at the high school level. Goplerud, reflecting on this progression, noted, “This was inevitable once college athletes received the green light,” highlighting a natural extension of NIL rights to high school athletes as not just a legal inevitability but a matter of fairness. Goplerud’s insights highlight an evolving consensus: the disparity between student-athletes and their non-athlete peers over NIL rights was unsustainable. The legal reforms in college sports served as a catalyst for extending NIL policies to high schools, signaling a cultural and regulatory shift towards fair compensation for young athletes’ marketability. This transition embodies a significant change in how athlete contributions are valued, reflecting broader societal movements for equity in sports (ajc) (Eccker Sports Group).
The FHSAA’s Proposal Explained
The Florida High School Athletic Association’s proposal, introduced in February 2024, marks the most significant shift to date in allowing Florida’s high school athletes to receive compensation from their name, image, and likeness. This move aligns Florida with other states that already permit such agreements, albeit with specific restrictions. Under the proposal, student-athletes cannot engage in NIL deals with entities associated with adult entertainment, alcohol, tobacco, vaping, cannabis, controlled substances, prescription pharmaceuticals, gambling, or weapons.
The FHSAA’s NIL proposal introduces a progressive disciplinary system for infractions. Initially, an athlete who breaches the agreement receives a formal warning, must terminate the NIL deal, and is required to return any compensation. A second offense results in a year’s ineligibility to participate in any member school’s athletic activities, while a third infraction leads to a permanent ban from high school sports participation. These measures underscore the proposal’s emphasis on compliance and integrity within high school athletics.
Additionally, the proposal prohibits school employees, boosters, or representatives from facilitating NIL agreements, aiming to prevent them from being used for recruitment purposes. Athletes transferring mid-season are also prohibited from signing new NIL deals unless granted an exemption for good cause by the FHSAA. The proposal aims to not only empower athletes but also integrate comprehensive measures to maintain the integrity and educational values of high school athletics (Coach and Athletic Director).
Legal and Ethical Considerations
The introduction of NIL rights for high school athletes not only creates new avenues for young talent to leverage their popularity but also introduces a swarm of legal and ethical challenges. Peter Goplerud stresses the importance of professional legal guidance for young athletes entering NIL contracts, stating, “Every NIL agreement for a minor should be carefully reviewed by an attorney with expertise in this area to ensure it’s in the athlete’s best interest and legally compliant.” This advice considers the potential for minors to enter into agreements that may not fully consider their long-term welfare or career trajectory.
Ethically, the monetization of young athletes walks a fine line between offering deserved compensation and risking the integrity of amateur sports. Goplerud highlights the critical balance that must be maintained: “While NIL opportunities present a fair chance for athletes to benefit from their talents, it’s paramount that these opportunities do not compromise the educational purpose of high school sports.” The protection against exploitative deals is a concern echoed across the sports law community, emphasizing the need for regulatory oversight to prevent young athletes from being taken advantage of by predatory contracts or sponsors.
Schools also play a pivotal role in safeguarding their athletes’ interests and will be increasingly tasked with navigating the murky waters of NIL opportunities while ensuring educational values remain at the forefront. Conflicts of interest between educational institutions and the commercialization of high school athletics pose a real challenge, necessitating clear guidelines and ethical standards to manage these partnerships responsibly.
Impact on Competitive Balance
NIL policies have the potential to significantly influence athlete recruitment strategies within Florida’s high schools. However, Goplerud believes the impact on recruitment may be mitigated by the FHSAA’s in-season transfer restrictions, stating, “The proposal’s design to restrict NIL deals for transferring athletes during the season is a thoughtful approach to maintaining competitive balance.” Goplerud’s perspective suggests an optimism that NIL can be integrated without disrupting the fairness of high school sports competitions.
Yet, concerns linger that NIL could exacerbate disparities among schools with varying resources, potentially leading to an uneven playing field. As with all changes, the need for regulatory actions to ensure competitive balance and fairness becomes apparent, drawing lessons from college sports amid the NIL “pay-for-play” recruitment landscape. In avoidance of this scenario, Goplerud and other experts support the adoption of the FHSAA’s measures that could prevent a ‘rich get richer’ scenario in Florida high school sports.
Looking to the Future of NIL
When projecting the future of NIL in high school sports, the cultural and experiential landscape for student-athletes is poised for transformation. Goplerud anticipates schools becoming more involved in NIL activities, potentially guiding athletes through the complexities of deal-making and branding. The call for national standards or guidelines to ensure fair and equitable NIL practices across states is growing louder, aiming to prevent disparities that could undermine the integrity of high school sports.
The evolution of athlete compensation, including the potential expansion of NIL rights, signifies a pivotal shift in the recognition of young athletes’ contributions and marketability. Closing with a reflection on the balance between commercial opportunities and preserving the essence of high school sports, Goplerud remarks, “While embracing NIL’s potential, we must not lose sight of sports as a medium for education, character building, and personal development.”
This evolving dialogue around NIL rights in high school sports underscores a broader movement towards fairness and equity in athlete compensation, heralding a new era in sports law and athlete advocacy.
Joseph M. Ricco IV is a second-year Sport Management and Government double major at the University of Texas at Austin. Currently a Texas Longhorns Football Recruiting Operations & Events Intern, Joseph brings hands-on experience in football operations and event management. As the founder of the Model National Football League (MNFL), Joseph strives to blend sports management with legal insights to innovate within sports law.
