I was traveling in the State of Washington two weeks ago when the Oregon School Activities Association announced that it was permitting its athletes to capitalize on their name, image, and likeness (“NIL”). As I told On3 at the time, “[s]tates that haven’t passed updated bylaws will soon become the exception.”[i] This made me think, “why hasn’t Washington authorized NIL while neighboring states like Oregon, Idaho, and California have done so, and other nearby states like Nevada and Montana are considering revising its NIL rules for high school athletes?” The Evergreen State has been marked as “prohibited” for some time by websites tracking this issue.
So, I looked at the Washington Interscholastic Activities Association’s (“WIAA”) website to see if this topic has been discussed by the WIAA’s Executive Board. During the last Executive Board Meeting of the 2021-22 school year (June 5, 2022), there is reference to NIL and that “editorial changes” were made to the “Amateur Standing” rule in the WIAA handbook that “do not represent a significant change to what has previously been allowed by rule in the past.”[ii] These “editorial changes” are highlighted below[iii], and were later included in the 2022-23 WIAA handbook[iv]:
With this additional commentary, it appears that, pursuant to Rule 18.25, the WIAA has permitted its athletes to engage in NIL deals without jeopardizing their eligibility all along, provided that: (1) such deal does not connect to the athlete’s school, team, WIAA district or WIAA state association; (2) the athlete does not appear in the school’s uniform and does not utilize the marks, logos, and other intellectual property of the athletes’ school, WIAA district or WIAA state association; and (3) such deal is not based on athletic performance. This is further confirmed by the new “Question and Answers” guidance released by the WIAA for this school year.[v] It should also be noted that while Rule 18.25.2(G) states that a “student-athlete may not . . . [a]dvertise or promote a commercial product or service,” which may seem at odds with the clarifications on NIL, this clause is meant to be read in conjunction with the aforementioned “editorial changes.”
Did the WIAA notify its member schools that NIL is actually permitted for its athletes? That is a bit unclear. But it does not appear that Caleb Presley, the top football recruit in the State of Washington who has a $143K NIL valuation according to On3[vi], has engaged in any social media-related NIL deals after a quick review of his social media accounts (i.e., Twitter, Instagram, TikTok). This does not mean Presley has not engaged in other NIL-related activities (e.g., autograph sessions) nor other WIAA athletes have signed NIL deals.
Washington should now be included among the 20 state high school athletic associations, including Alaska, California, Colorado, Connecticut, Idaho, Iowa, Kansas, Louisiana, Maine, Massachusetts, Minnesota, Nebraska, New Jersey, New York, North Dakota, Oklahoma, Oregon, Utah, and the District of Columbia, that permit NIL at the high school level. Expect this number to grow in the coming months.
[i] https://www.on3.com/nil/news/where-is-nil-allowed-after-oregon-becomes-19th-state-to-allow-it-for-high-schoolers/ [ii] http://www.wiaa.com/results/execboard/21-22/6-5-22/Minutes.pdf, page 5. [iii] http://www.wiaa.com/results/execboard/21-22/6-5-22/A-1.pdf, page 2-3. [iv] https://wiaa.com/results/handbook/2022-23/FullHandbook.pdf, page 38. [v] https://wiaa.com/results/handbook/2022-23/Q&A.pdf, page 22-23. [vi] https://www.on3.com/db/caleb-presley-17145/nil/