The Name, Image, and Likeness (NIL) era has arrived, and the consequences for collegiate athletics have been far-ranging. Within only one month, student athletes and sometimes even full teams have executed endorsement or sponsorship deals, while conferences like the Big 12 and SEC are scrambling at the prospect of major conference realignments. INFLCR, an Alabama-based brand building company that works directly with multiple top universities has already reported that through one month of the NIL era, at least 1,300 NIL transactions have taken place.[1] These transactions have totaled approximately $1.256 million, with the average NIL deal coming in at around $923.[2] However, underlying all the NIL-related innovations taking place in college sports, a new question has arisen: should high school student athletes be able to profit off their Names, Images, and Likenesses?
Prior to July 1, 2021, this question was often overlooked in the context of NIL, but it has risen to the limelight after the sports world has gotten a taste of just how fruitful NIL possibilities can be. In late July, Southlake Carroll High School (TX) Quarterback Quinn Ewers informed Yahoo Sports that he was “leaning” towards skipping his senior year of high school to enroll early at Ohio State University.[3] Ewers, the top ranked football recruit in his class per Rivals.com, is currently prohibited from profiting off his Name, Image, and Likeness under Texas’ existing NIL structure. Texas’ NIL law expressly provides that “No individual, corporate entity, or other organization may: (1) enter into any arrangement with a prospective student athlete relating to the prospective student athlete’s name, image, or likeness prior to their enrollment in an institution of higher education.” [4] Despite Texas’ NIL limitations, Ewers’ 83,000 Instagram followers and iconic blonde mullet have already earned him NIL offers from local and national companies.
With these NIL opportunities in mind, Ewers announced on August 2nd that he had decided to forgo his senior year of high school eligibility and enroll early at The Ohio State University. Ewers, via his Twitter (@QuinnEwers), stated “following Texas’ UIL informing me I would be prohibited from profiting off my own name, image, and likeness, I’ve taken time to think about what lies ahead of me, both in the short- and long-term. It’s unfortunate I’ve found myself in this situation, as my preference would have been to complete my senior season at Southlake Carroll along with the teammates and friends I’ve taken the field alongside for the past three years. However, following conversations with my family and those I know have my best interests in mind, I’ve decided it’s time for me to enroll at Ohio State and begin my career as a Buckeye.”[5] Ewers, by enrolling early at Ohio State, will not only be able to profit off his NIL, but will also have the opportunity to obtain eligibility for the NFL Draft one year earlier than if he had elected to complete his Southlake Carroll football career. With substantial benefits available for Ewers outside his home state of Texas, it is clear that the NIL spotlight is beginning to shift to high school athletic stars. Ultimately, Ewers’ decision to enroll at OSU early will make him a trailblazer in the NIL sphere.
In the absence of much needed federal NIL legislation, many States that do have NIL legislation in place explicitly prohibit high school student athletes from profiting off their Names, Images, and Likenesses. The outlier is California, whose Student Athlete Bill of Rights legislation helped expedite the NIL evolution to where it is today. In California, high school student athletes are expressly permitted to monetize off their Names, Images, and Likenesses in the same way college student athletes can.[6] Without federal NIL legislation, States which have declined to pass NIL legislation to date are forced to rely on statewide high school athletic association’s NIL policies. For instance, the National Federation of State High School Associations outwardly prohibits high school student athletes from monetizing off their NILs.[7]
On July 28, 2021, the New York State Public High School Athletic Association (NYSPHSAA) agreed to hold a vote in October 2021 to definitively determine whether high school student athletes can utilize their NILs without threatening their athletic eligibility.[8] If the NYSPHSAA votes affirmatively to extend NIL rights to high schoolers, it places New York and California preparatory high schools at a clear competitive advantage in athletics recruiting.
Supporters of extending NIL rights to high school student athletes ground their reasoning in many of the same concepts that support giving NIL rights to college athletes: the belief that individuals should be able to allow the free market to determine the worth of their Names, Images, and Likenesses, instead of having governing bodies in sports cap that value at zero dollars. Other high school athletes like basketball phenoms Mikey Williams and Bronny James have social media followings exceeding 1 million followers across Instagram and TikTok. If high school athletes with this sort of online presence are recruited by companies for endorsement deals, they’d be forced to decline lucrative offers to maintain eligibility. However, the same premise does not apply to musicians, artists, or E-sports players who are still in high school. The obvious disconnect based on the tradition of Amateurism has put high school athletes in a bind, and the time is now for Congress and State Legislatures to act and permit high schoolers to join the NIL era. Nevertheless, one thing is for certain: Quinn Ewers’ decision to enroll at Ohio State a year early will have clear repercussions, as the future of high school sports and athletic recruiting will forever be changed.
[1] Eric Prisbell, NIL: A Quick snapshot one month into the NCAA’s new era, On3.com, (Aug. 1, 2021), https://www.on3.com/news/nil-quick-snapshot-one-month-into-ncaa-new-era/ [2] Id. [3] Pete Thamel, Will America’s No. 1 QB recruit Quinn Ewers give up 7-figure NIL offers for one more season of Texas high school football?, Yahoo! Sports, (July 28, 2021), https://sports.yahoo.com/will-americas-no-1-qb-recruit-quinn-ewers-give-up-7-figure-nil-offers-for-one-more-season-of-texas-high-school-football-200803437.html [4] TX SB 1835(j)(1), 2021-2022, 87th Legislature. [5] Quinn Ewers (@QuinnEwers), TWITTER (Aug. 2, 2021, 12:48 PM), https://twitter.com/QuinnEwers/status/1422237898989088768 [6] Doug Samuels, Report: California says NIL rights aren’t just for college athletes, Football Scoop, July 22, 2021, https://footballscoop.com/news/report-california-says-nil-rights-arent-just-for-college-athletes [7] Dr. Karissa Niehoff, NIL Rulings Do Note Change for High School Student-Athletes, National Federation of State High School Associations, July 7, 2021, https://www.nfhs.org/articles/nil-rulings-do-not-change-for-high-school-student-athletes/ [8] Tommy Sladek, NYSPHSAA to vote on allowing high school athletes to benefit off name, image, likeness, CNY Central, July 28, 2021, https://cnycentral.com/sports/high-school/nysphsaa-to-vote-on-allowing-high-school-athletes-to-benefit-off-name-image-likeness
