In the wake of the National Collegiate Athletic Association (“NCAA”) allowing college student athletes to capitalize on their Name, Image, and Likeness (“NIL”), many are asking questions of who makes the rules behind this new area. Currently, the NIL landscape is sort of a wild, wild west- there are no formal federal guidelines applicable to all schools or all states regarding what student athletes can and cannot do, and how they can navigate this arena. While there have been some NIL Legislation introduced as bills, none have been passed. Instead, states are left with full reigns over regulation, and set their own rules. Subsequently, many states have drastically different policies regarding NIL deals, some even going so far as to allow high school student athletes to engage in NIL deals and make money from their name image and likeness.
Due to the lack of federal regulation, states have taken it into their own hands to regulate their individual NIL landscapes. Even though the NCAA has allowed for student athletes to be compensated for their NIL, not every state has active Nil laws. Where a state does have a regulation in place, the student athletes must comply- if not, the student athlete must comply with any institution and conference policies.
To date, 32 states have passed NIL laws, which are largely modeled on California’s “Fair Pay to Play Act” which was the first state NIL law to be put into effect. Not included these 32 states are Delaware, Massachusetts, New York, Rhode Island, and Washington which currently have legislation in the works that has been proposed but has yet to pass. Seven states- Alaska, have no known NIL activity, while two, Alabama and South Carolina have rescinded an NIL law that was previously in effect.
Due to the differences in NIL laws, there are no regulations regarding high school student athletes either, leaving the states to impose their own regulations on that front as well. Currently, allowing student athletes to capitalize on their NIL is a highly controversial topic, given their age and the level of sport in high school. Some critics believe that paying high school athletes will diminish the more relaxed and casual aspect of high school sports, making it instead a very serious and exclusive arena, much like professional sports. This would further make it hard for just everyone to play high school sorts, and discourage across the board participation from other students, as well as making it more about the money for many student athletes.
The states who allow for high school players to monetize their NIL are:
Alaska
California
Colorado
Connecticut
District of Columbia (D.C.)
Idaho
Iowa
Kansas
Louisiana
Maine
Massachusetts
Minnesota
Nebraska
Nevada (limited, see below)
North Dakota
New Jersey
New York
Oregon
Rhode Island
Utah
The complete lack of federal regulation in the high school sports arena has allowed a total freedom to the states to do what they want, but also for student athletes to move to different states in order to capitalize on these deals if their states do not have active NIL policies. Athletes like T.A. Cunningham put their eligibility on the line by moving across the country- in this case, from Georgia to California, when California was one of the only states that had NIL laws for high school players, and Georgia was not. While it worked out for him in the end, and he was able to play in high school and pursue NIL contracts, the drastic differences in laws by state makes it very difficult for players to navigate, and force them to make possibly life-changing decisions based on financial compensation, while playing high school sports.
Though there is no regulation yet, there has been federal regulation introduced in 2019 and 2020 and re-introduced in 22, which may suggest that there will be some attempt at federal regulation in the near future.
