Name, Image, and Likeness: How the NIL Has Rapidly Encroached Upon High School Sports
By Matthew Lybeck
Starting on July 1, 2021, college athletes began being able to profit off their name, image, and likenesses (NIL) without forfeiting their eligibility to compete as college athletes.[1] Prior to July 2021, there were several legal disputes concerning the portrayal of athletes in video games and various forms of media as a misappropriation of the athletes’ right of publicity.[2] Originally limited to college athletes, the National Collegiate Athletic Association’s (NCAA) policy allowed athletes to engage in NIL activities in accordance with state laws and school procedures, while also allowing the athletes to seek out professional agents to manage their NIL opportunities.[3] NIL opportunities quickly spread from college athletics to high school athletics in many states.[4]
Although not endorsed in every state, 60-percent of states currently allow high school athletes to monetize their NIL rights and profit without forfeiting their eligibility to compete in high school and college.[5] Many of the twenty states that have yet to allow high school athletes to monetize their NIL rights are currently considering legalizing the practice.[6] Of the states that allow high school athletes to profit from their NIL rights, many of them require that any media created involving the athletes cannot include any reference to their high schools.[7]
Some states have begun amending their NIL legislation to compete with states with more attractive NIL programs in order to keep their athletes in-state for their college athletic careers.[8] In Missouri, recent legislation allows high school athletes to sign NIL endorsement deals during their senior year only if they are committed to a state school for their college athletic careers.[9] When asked, a Missouri high school football coach noted that this amendment was obviously beneficial to Missouri’s state schools and their athletic programs, but that it was also beneficial to the athletes because it allows them to begin profiting from their NIL rights prior to entering college.[10] The coach’s concerns, however, were focused on avoiding a mass proliferation of California’s NIL legislation, which allows high school athletes to profit from their NIL rights before signing to play for a college team.[11] In contrast to Missouri’s program that limits NIL profiting to high school athletes who sign to compete for Missouri’s state schools, high school athletes in California are able to profit from their NIL rights as soon as they begin their high school careers.[12]
To emphasize the potential effectiveness of this amended legislation, the University of Missouri landed a five-star football recruit in August 2023; the athlete was thus able to capitalize on the new NIL program in Missouri.[13] It is important to note that the timing of this commitment might merely be coincidental, given that Missouri had landed another in-state five-star football recruit in the prior year’s recruiting class.[14] However, the timing does suggest that the recent amendment might have been a factor.
Although this provides only a small example of the potential effects of legislation limiting high school NIL rights to those athletes who commit to in-state schools, it does raise the question of whether other states might amend their programs to mirror Missouri’s to encourage their high school athletes to remain in-state for their collegiate athletic careers.
Similarly, what repercussions might there be for an athlete who committed to the University of Missouri but later decommitted after profiting for at least some portion of his or her senior year of high school? Is it possible that the athlete’s decommitment and later attendance at an out-of-state school might result in the forfeiture of his or her college eligibility?[15]
Obviously, further developments will arise based on additional state legislation in other states going forward. Regardless of future changes, the NCAA’s allowance of high school athletes to profit from their NIL rights has changed recruiting in college sports.
Matt grew up in Avon, CT. Before coming to Vanderbilt, Matt completed his undergraduate degree at the University of South Carolina and remains an avid Gamecock fan.
[1] See Dan Murphy, Everything You Need to Know About the NCAA’s NIL Debate, ESPN (Sep. 1, 2021), https://www.espn.com/college-sports/story/_/id/31086019/everything-need-know-ncaa-nil-debate.
[2]See generally Hart v. Elec. Arts, Inc., 717 F.3d 141 (3d Cir. 2013) (finding that the video game manufacturer had misappropriated the college football player’s likeness without using his name by matching the corresponding player in the game to the athlete’s height, weight, jersey number, and hometown); Nathan Crown, Hart v. Electronic Arts, Inc.: The District of New Jersey Tackles College Athletes’ Publicity Rights, 19 Sports Law. J. 345.
[3] NCAA Name, Image, Likeness Rule, NCSA (last visited on Nov. 6, 2023), https://www.ncsasports.org/name-image-likeness.
[4] See generally Braly Keller, High School NIL: State-By-State Regulations for Name, Image, and Likeness Rights, Opendorse (May 25, 2023), https://biz.opendorse.com/blog/nil-high-school/; Tracker: High School NIL, Business of College Sports (last updated Oct. 4, 2023), https://businessofcollegesports.com/high-school-nil/.
[5] See Tracker: High School NIL, supra note 4.
[6] See Keller, supra note 4; NCAA Name, Image, Likeness Rule, supra note 3.
[7] See Keller, supra note 4 (noting that states like California prohibit athletes from wearing a school’s uniform or any clothing that might be related to the school in any commercial, endorsement, or other endorsement deal).
[8] See Kacen Bayless, New MO Law Allows High School Athletes to Cash in on Image if They Sign to In-State College, The Kansas City Star (July 17, 2023), https://www.kansascity.com/news/politics-government/article277293543.html.
[9] See id.
[10] See id.
[11] Id. (although recognizing the potential benefits this would have for the University of Missouri, the coach worried that this amendment might be opening the door to allowing all high school athletes to profit from their NIL rights, regardless of their age or commitment status for college).
[12] Id.
[13] See id.; Bill Pollack, Mizzou Lands top in-State Recruit for 2024, Missourinet (Aug. 15, 2023), https://www.missourinet.com/2023/08/15/mizzou-lands-top-in-state-recruit-for-2024/#:~:text=Mizzou%20football%20landed%20the%20top,one%20player%20in%20the%20state. (noting that Williams Nwaneri is the highest ranked recruit that Missouri has attracted to play for them in almost 10 years).
[14] See Joseph Zucker, 5-Star WR Luther Burden Commits to Missouri After Decommitting from Oklahoma, Bleacher Report (Oct. 19, 2021), https://bleacherreport.com/articles/10015172-5-star-wr-luther-burden-commits-to-missouri-after-decommitting-from-oklahoma.
[15] See NCAA Name, Image, Likeness Rule, supra note 3 (noting that high school student athletes must follow the state laws governing NIL rights and a failure to do so might result in forfeiture of the athlete’s eligibility to compete as an athlete at the college level).