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Name/Image/Likeness Coming to Oregon K-12 Soon? Potential Impacts of the OSAA’s NIL Decision and Why Districts Need to Pay Attention Now

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The Oregon School Activities Association (OSAA) is set to consider language at its Feb. 7 meeting that could officially open the door to Oregon high school athletes profiting from Name Image Likeness (NIL) activities. An NIL activity is any business activity in which student-athletes are compensated in any way for the use of the student-athletes’ NIL, including personal athletically- or nonathletically-related businesses, social media influencing, promotional appearances, camps, lessons, and autograph sessions. NIL compensation can come in a variety of forms; while headline-grabbing cash deals are the most obvious, smaller scale deals can involve free product alone, or even just a product discount.

A few states have already approved revisions to their amateur athletics rules, giving a preview of what we expect the OSAA’s likely action will be; which is to officially permit NIL activities for high school students, subject to certain limitations such as no use of school logos, marks or uniforms, and no school affiliation with the NIL deal (see the Kansas association’s language, for example).

As soon as the OSAA takes action, your students may rapidly begin pursuing NIL activities, so it’s important to be prepared and have policies in place.

Background

Since the formation of the NCAA in the 1900s, amateur athletes or student-athletes (as coined by Walter Byers, the NCAA’s first executive director) have been restricted by NCAA rules by not being allowed to profit off their own NIL. This bar directly affected not only college student-athletes, but also high school (and younger) athletes, since a high school athlete would likely lose their NCAA eligibility if they profited off their own NIL.

It was big news when the NCAA changed its rules effective July 1, 2021 to allow college student-athlete to enter into endorsement agreements, NIL-related business ventures, professional representation agreements, and generally profiting off NIL. However, many state school activities associations maintain bylaws mirroring the NCAA’s old prohibition on NIL activities/commercial endorsements. In addition, the National Federation of State High School Athletes (NFHS) issued a statement in July suggesting that high school athletes would be unable participate in NIL activities, because those activities could constitute earning money as a result of their connection to their high school team. The NFHS statement failed to address the reality that many NIL deals are based solely on an athlete’s individual NIL, without any connection to the school or school intellectual property, making clarification from state associations even more critical.

With the NCAA’s restrictions now removed and states moving to clarify whether amateur athletes can participate in NIL deals, we expect to see NIL activity and agent/professional representative recruiting taking place at the high school level. In Oregon, that shift could potentially begin as soon as February, depending on the OSAA’s decision.

Impacts of OSAA NIL Rule Changes

In light of the pending change, we strongly recommend that school districts (and other amateur sports organizations) think through how these changes will impact high school athletics and develop policies, procedures, and student education materials for athletes of all ages and staff, including:

  • Student Policy: For most schools, a Student NIL Policy will outline restrictions on use of school logos and uniforms, use of school time and facilities, any requirements regarding NIL deal reporting, and perhaps restrictions on type of deals (at the higher education level, certain institutions restrict NIL activities that relate to certain industries including alcohol, tobacco, cannabis, and adult entertainment).
  • Agent Policy: Along with modernizing NIL rules, state legislation (including Oregon’s SB5) made clear that students are permitted to work with agents and other professional representatives. With NIL deals moving into high school and youth athletics, agent recruiting will as well, and schools will want to have limits on when, where, and how agents can recruit on campus and at athletic events.
  • Staff Policy: Many of the above issues also need to be dealt with at the staff level; and schools may also wish to adopt rules relating to potential agent referrals or conflicting agent work by school staff members, advising students on or introducing NIL deals, and NIL-related recruiting of prospective student athletes.
  • Student/Staff NIL Education: In connection with these policies and similar to the programs some higher education institutions are implementing for their athletes, K-12 institutions should consider providing education on NIL compliance so that student athletes and staff understand NIL and agent-related rules, and don’t unintentionally impact high school and NCAA athletics eligibility. Certain schools where athletics is a particular focus may choose to go further and actively educate student athletes on how to build their brand and attract NIL deals.
  • NIL Donor Groups: As we have seen in the higher education space, we expect that some schools may see donor or alumni related NIL groups like Division Street, though locally that may take a smaller scale form.

Our NIL team is actively working through the many compliance, licensing, and other legal issues facing our institution and NIL organization clients. We would welcome the opportunity to speak with your district about the policies, procedures, and educational materials you need to put in place in order to be ready for changes to Oregon amateur athletics rules.