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NIL Modernization Goes Live—Potential Impacts on High School Athletes

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With 23 states having signed name, image, and likeness (NIL) bills or executive orders into law, including at least 12 with July 1 effective dates, NIL modernization is hours away from hitting college athletics. In response, the NCAA has issued an Interim Policy instructing its member institutions (D-1, D-2, and D-3) to put policies in place by July 1, and to the extent applicable, comply with state law.

While NIL legislation does not directly address high school athletes, there will be notable reverberations down through amateur athletics as a whole. While the form and exact provisions of NIL legislation differs from state to state, there are two dominant themes:

  1. Subject to certain narrow limitations, the NCAA and institutions of higher education are not permitted to restrict a student-athlete’s ability to enter into agreements for use of their NIL, including for profit;
  2. Student-athletes are permitted to enter into agreements with professional representatives, including sports agents, for activities related to NIL.

Traditionally, high school athletes have been prevented from entering into endorsement agreements, NIL-related business ventures, and professional representation agreements because entering into such agreements would cause the student-athlete to lose their NCAA eligibility. With that restraint removed, and because there is no general prohibition on amateur athletes entering into such agreements, we expect to see NIL activity and agent/professional representative recruiting taking place at the high school level, subject to any further updates to applicable laws or policies.

Accordingly, while not required by law at this time, we strongly recommend that high school athletic departments (and other amateur sports organizations) think through how these changes will impact them, and develop policies, procedures, and student education materials for athletes of all ages. These may include:

  • Agent/representative registration processes;
  • Agent/representative policies (including policies for on-campus recruiting);
  • Student-athlete NIL policies (e.g., limiting agreements inconsistent with school values or school sponsorship agreements);
  • Student-athlete NIL and representative-related education programs; and
  • Athletic/administrative staff policies and education programs.

Our NIL team has been tracking NIL modernization efforts since 2019, and is familiar with the requirements of applicable law and complex issues institutions may face in this new age of amateur athletics. We would welcome the opportunity to speak with your institution or athletic department about the policies, procedures, and educational materials you need to put in place.