New Influencers on the Block: The NIL and High School Athletes

Blog Post | 110 KY. L. J. ONLINE | October 28, 2021

New Influencers on the Block: The NIL and High School Athletes

By: Andrew Tao, Staff Editor, Vol. 110

On July 1, 2021, the world of college athletics changed forever with the implementation of interim NCAA policies allowing college athletes to profit off their name, image, and likeness (NIL) across all 50 states.[1] However, the NCAA’s suspension of its traditional amateurism rules, which barred any form of compensation, was not a voluntary one. Eight states were poised to implement NIL laws on July 1.[2] Further, in a unanimous decision, the Supreme Court held in NCAA v. Alston that the NCAA’s limitation of education-related benefits violated the Sherman Act.[3]

While the ruling in Alston did not explicitly address NIL compensation, the implications from the case were clear: the NCAA needed to change its stance on NIL or face potential violations of antitrust law.[4] Thus, a new landscape of athlete compensation was born.[5] Yet, as one question was answered, a seemingly endless number of new questions emerged including the impact on high school athletes.[6]

 Does NIL apply to high school athletes?

The first question raised regarded the applicability of the new NIL laws on high school athletes.[7] Immediately following the NCAA’s decision to allow individual schools and states to regulate their own NIL rules, California announced that high school athletes within the state could profit from their name, image, and likenesses.[8] A spokesperson for the California Interscholastic Federation reasoned that high school athlete compensation is analogous to the long history of child actors receiving compensation for their work within the state.[9]

While one might have expected California’s decision to open the floodgates for other states to follow suit, the opposite occurred.[10] Despite being at the forefront of college NIL rights, Texas, Mississippi, and Illinois expressly required an athlete to be enrolled in an institution of higher education to be eligible for the states’ NIL benefits.[11] While many states do not expressly bar high school athletes from profiting off their NIL, state high school athletic associations have outright banned any athlete from competing if he or she is compensated.[12] Karissa Niehoff, executive director of the National Federation of State High School Associations, declared that allowing high school athletes to be compensated for their NIL destroy the concept of a team.[13] Further, parents are worried about protecting their children from companies and the dangers of celebrity status.[14]

How have high school athletes responded?

With the power of social media, high school athletes can quickly gain fame and reach influencer status by gaining thousands and millions of followers.[15] The most notable and drastic response from a high school athlete was from the number one football recruiting prospect in the class of 2022, Quinn Ewers.[16]

Ewers is from Texas, a state which expressly outlawed NIL compensation for high school athletes.[17] Ewers decided to forego his final season of high school football in Texas and enrolled early at Ohio State.[18] It is being reported that Ewers has already signed three NIL deals.[19] Most prominently, he signed a NIL deal with GT Sports Marketing for $1.4 million over the course of three years in exchange for autographs.[20]

Additionally, high-school-aged athletes have begun to enroll in private academies or institutions that are not governed by high school associations.[21] Mikey Williams, a seventeen-year-old basketball star, attends high school classes at Lake Norman Christian School in North Carolina but plays basketball for Vertical Academy so he can pursue NIL deals.[22]

 So, what now?

High school athletic associations will likely face pressure from the public and athletes much like the NCAA did in years past.[23] However, it is unlikely that a court would find the limitations on NIL deals for high schoolers to violate antitrust law.[24] Alternative options of private schools not subject to state rules, AAU tournaments, and social media exposure would likely lead to enough exposure to still gain college interest and scholarships while simultaneously making money through NIL compensation.[25]

Pressure on high school athletic associations will also come from the same driving force behind all major sports decisions: competitive advantage.[26] California high school athletics already have some of the best teams in the country,[27] but through the attractiveness of its NIL laws, high-school-aged stars will flock to the state in order to both compete and make money while doing so.[28] As teams in other states start to lose, the pressure will build on state athletic associations and force them to revise their bylaws to allow for NIL compensation for high school athletes.[29] However, states where legislatures have officially banned NIL deals for high school athletes (Texas, Mississippi, and Illinois), will face a much more difficult process for instituting change.[30]

[1] Jada Allender, The NIL Era Has Arrived: What the Coming of July 1 Means for the NCAA, Harv. J. Sports & Ent. L. Online (July 1, 2021), https://harvardjsel.com/2021/07/the-nil-era-has-arrived-what-the-coming-of-july-1-means-for-the-ncaa/.

[2] Id.

[3] Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141 (2021).

[4] Allender, supra note 1.

[5] Id.

[6] E.g., Jacob Rubinstein, NIL’s Next Step: Is a Nationwide NIL Expansion to High School Athletes Inevitable?, Brook. Sports & Ent. L. Blog (Aug. 13, 2021), https://sports-entertainment.brooklaw.edu/nils-next-step-is-a-nationwide-nil-expansion-to-high-school-athletes-inevitable/; Kristi Dosh, Uncertainty Remains For High School Student Athletes On NIL Rights, Forbes (July 31, 2021, 9:30 PM), https://www.forbes.com/sites/kristidosh/2021/07/31/uncertainty-remains-for-high-school-student-athletes-on-nil-rights/?sh=3bc646d24e00.

[7] See Rubinstein, supra note 5.

[8] Darren Heitner, The Fight for NIL Rights Reaches a New Class: High Schoolers, Outkick (July 25, 2021), https://www.outkick.com/the-fight-for-nil-rights-reaches-a-new-class-high-schoolers/.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Roman Stubbs, High school sports will feel the impact of NIL changes. For some, that’s cause for concern., Wash. Post (June 21, 2021, 7:00 AM), https://www.washingtonpost.com/sports/2021/06/21/nil-changes-high-school-sports/.

[14] Id.

[15] Dosh, supra note 5.

[16] Rubinstein, supra note 5.

[17] Id.

[18] Id.

[19] Tom VanHaaren, Ohio State Buckeyes QB Quinn Ewers has NIL deal for $1.4 million, source says, ESPN (Aug. 31, 2021), https://www.espn.com/college-football/story/_/id/32120440/ohio-state-buckeyes-qb-quinn-ewers-nil-deal-14-million-source-says.

[20] Id.

[21] Dosh, supra note 5.

[22] Id.

[23] See Heitner, supra note 7.

[24] See Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141 (2021).

[25] See Heitner, supra note 7.

[26] Id.

[27] See Sports Super 25 high school football rankings, USA Today (Oct. 12, 2021), https://usatodayhss.com/2021/high-school-football-rankings-national-usa-today-sports-super-25-october-week-8 (ranking three California high school football teams in the top ten national rankings); Super 25 national high school volleyball rankings, USA Today (Oct. 13, 2021), https://usatodayhss.com/2021/2021-avca-usa-today-super-25-national-high-school-volleyball-rankings-week-7 (ranking three California high school volleyball teams in the top ten national rankings); Michael McCarthy, Sports Networks Increasingly Interested in Showing High School Stars, Front Off. Sports (Dec. 3, 2019), https://frontofficesports.com/high-school-sports/ (noting ESPN will broadcast fifteen Sierra Canyon (CA) boys high school basketball games).

[28] See Heitner, supra note 7.

[29] Id.

[30] Id.