By Gregg E. Clifton & Bernard G. Dennis III, of Jackson Lewis, PC
Not only are name, image, and likeness (NIL) rights being asserted in collegiate sports, high school athletics are beginning to experience expansion of NIL rights as well.
After the National Collegiate Athletic Association (NCAA) announced it would no longer enforce almost all of its NIL rules prohibiting individual athletes competing at NCAA-affiliate institutions from marketing and profiting from their NIL, prohibitions against high school athletes capitalizing on the same NIL rights were still the national standard. Shortly after the NCAA’s announced change, Executive Director of the National Federation of State High School Associations Dr. Karissa Niehoff commented that the NCAA’s change does not affect high school athletes and member-state rules prohibiting athletes “from receiving money connected to wearing their school uniform.” However, as Dr. Niehoff acknowledged, high school athletics are governed state-by-state and several are revisiting their rule books.
In California, the California Interscholastic Federation (CIF) has taken the position that their rules never prohibited athletes from profiting from their NIL rights, as the CIF is unwilling to declare an athlete ineligible for also participating in the state’s film and television economy. However, California prohibits athletes from using their school’s name, logos, uniforms, or marks in endorsements.
New York and New Jersey have joined California in granting high school athletes NIL rights. While the New York legislature has yet to pass a state law granting NIL rights to college athletes in the state, the New York State Public High School Athletic Association (NYSPHSAA) executive committee has revised the state’s amateur rule to allow high school athletes to benefit from their NIL rights without jeopardizing their amateur status.
However, the NYSPHSAA revision contains restrictions similar to California’s rule. New York athletes also are prohibited from using their school’s name, logos, marks, or affiliation with the NYSPHSAA in any endorsements. The new NIL rights also prohibit student-athletes from appearing in any endorsement wearing their high school uniform. A violation of these restrictions could result in the loss of eligibility to compete. NYSPHSAA Executive Director Robert Zayas referenced not only the NCAA rule change but the rise in “social media influencers” and the difficulty in distinguishing between online fame and athletic fame to enforce restrictions.
New Jersey is the latest to empower high school athletes with endorsement rights. The New Jersey State Interscholastic Athletic Association’s executive committee (NJSIAA) approved an NIL proposal to permit athletes to benefit from their NIL rights. The New Jersey Association has adopted the California model by prohibiting athletes from using their school logos and marks. New Jersey athletes also are prohibited from endorsing certain categories of products and services, including adult entertainment, alcohol, cannabis, gambling, and firearms. NJSIAA Executive Director Colleen Maguire commented:
“Everyone is excited. I do think there are athletes … who right now have a standing and a presence that probably are going to profit off it.”
The New Jersey rule will go into effect on January 1, 2022.
While states are making or considering NIL changes for high school athletes, some athletes are unwilling to delay profiting from their NIL rights. Top basketball recruit and scheduled 2023 high graduate Mikey Williams announced a deal with a sports agent and a multiyear endorsement deal with Puma. Williams avoided potential state NIL restrictions because he attends an independent high school in North Carolina, which is not governed by the North Carolina High School Athletic Association (NCHSAA). The NCHSAA is scheduled to review its NIL policy during its December Winter Meeting.
