How to Navigate NIL Rules for Athletes

In our last blog post we discussed the right of publicity, which refers to an intellectual property right that protects a person (usually worthy of recognition) against the misappropriation of their name, likeness, or other indicia of personal identity for commercial benefit. We also discussed that there was no actual “right of publicity” codified by a federal statute. Therefore, depending on whether you are a high school or college athlete and depending on the state you are located the NIL rules can change.

High School Athletes & NIL

The majority of high school athletes are allowed to monetize their name, image and likeness and maintain their high school athletic eligibility. These high students are bound by the same NIL rules as college athletes via state law and/or NCAA rules. Therefore, the student must check to see if their state has NIL signed into law or if legislation on this topic has been proposed. Additionally, high school athletes must comply with their state’s high school association decision on whether to permit athletes to make money from their NIL.

For example, in California the state’s high school association is the California Interscholastic Federation (CIF). The CIF was the first state to allow high school athletes to enter into NIL agreements and allow the athletes to receive monetary compensation for those agreements.   However, any commercial endorsements agreements by the athlete cannot be affiliated with the athlete's school or team.

Another example is Hawaii. The Hawaiian state high school association is the Hawaii High School Athletic Association (HHSAA). Although the HHSAA's administrative regulations do not specifically address NIL, students can lose their amateur status by competing for money in an organized athletic activity or under an assumed name, selling an award from a non-school athletic activity for cash, or by signing a professional athletic contract.

Collegiate Athletes & NIL

In general, the NCAA permits the following: 

1. Athletes can engage in NIL activities in compliance with state laws, and colleges can be a resource for NIL legal questions.

2. Athletes can use professional service providers to help navigate NIL activities.

3. Student-athletes in states without NIL laws can still engage in such activities without violating NCAA rules.

4. States, individual colleges and athletic conferences may impose reporting requirements.

However, the following items are prohibited when collegiate athletes enter into brand partnerships, sponsorships, or other deals involving their NIL.

1. Endorsement deals for alcohol or gambling

2. Deals without a quid pro quo.

3. Deals tied to performance/accomplishments.

4. Deals structured to induce recruitment to a specific school.

5. Deals between a school and athlete. Instead, deals should be through athlete and third party such as brands.

A collegiate athlete is also required to check with their individual school because each school has oversight of NIL deals made with their students. This means that the university can object to a deal for reasons such as: if it conflicts with existing agreements or if the contract does not meet the criteria of the compliance department. 

Slowly national governing bodies for specific sports have begun to release their own guidelines for student-athletes to retain their amateur status. It would be wise for a college athlete to check the guidelines for their specific sport’s national governing body. Here is an extensive list of some of the national governing bodies for specific sports:

• AAU Sports

• USA Baseball 

• US Amateur Basketball 

• USA Cheer 

• USA Field Hockey 

• USGA 

• USA Gymnastics 

• USA Ice Hockey 

• USA Lacrosse 

• US Rowing 

• USA Soccer 

• USA Softball 

• USA Swimming 

• USTA 

• USATF  

• USA Volleyball 

• USA Water Polo 

• USA Wrestling