First, I would like to give a special thank you to Jason Sciavicco, director of Titletown High, for providing some insight on this article. Jason, thank you sincerely for informing me and I certainly cannot wait to watch Titletown High when it comes out on August 27th on Netflix.
As of August 2, 2021, only one state in the United States, California, has allowed for high schoolers to profit from the use of their name, image, or likeness (“NIL”). California law permits student athletes, including high schoolers, to make money from the use of their name, image, or likeness so long as the student athlete does not use their school’s name, logo, or team uniform in any advertisements.
This differs from a lot of other states where state legislatures have either been silent on the rights of high schoolers in that regard or in the case of Texas, Illinois, and Mississippi, flat out forbade high schoolers from entering into endorsement deals prior to enrolling in college. Generally speaking, an NIL bill would:
prevent schools, conferences, and athletic associations from prohibiting student athletes from profiting from their NIL.
prevent schools, conferences, and athletic associations from affecting a student athlete’s athletic or scholarship eligibility as a result of engaging in NIL related activities, and lastly, prevent schools, conferences, or athletic associations from paying the student athletes for the use of their NIL.
An issue, though, is that by states refusing to take a stance one way or the other, further complications could arise that could’ve been avoided if provision to the law was enacted. An example of this is Titletown High, a football documentary focused on Georgia high school Valdosta High coming out on Netflix on August 27th. Show creator Jason Sciavicco stated that "Titletown High is what happens when high school football meets the unprecedented, behind-the-scenes access of multiple cameras, over twenty microphones and 7-days a week filming." The thing worth noting about this documentary, or others like it, is that depending on the state, the athletes cannot get paid for their name, image, and likeness being used throughout.
NIL laws were originally enacted to “balance the scales,” as there is a lot of money that flows through an economy stemming directly from the student athlete, yet they could never get in on the action. While this conversation was focused on college athletes, the existence of documentaries such as Titletown High suggest that perhaps it’s time to look beyond the originally intended scope.
As NIL bills generally prevent the schools from paying the student athletes, what would happen in a case where a school gets a documentary shot about a team and it takes off and becomes extremely profitable? In Texas, Illinois, or Mississippi, the school can’t cut the athletes a check, and in certain cases, the student athletes can’t even be compensated by the film company, distributor, or any other party. This is especially shocking, at least in Texas, as high school football is a huge deal.
In Georgia, where Titletown High takes place, the state’s high school athletic association maintains that “an athlete forfeits amateur status in a sport by … capitalizing on athletic fame by receiving money or gifts with monetary value except college scholarships,” and there is no state law specifically disallowing this practice, in fact, Georgia’s NIL law focuses exclusively on college athletes, allowing student-athletes to profit from their name, image, and likeness through sponsorships, endorsements, personal appearances, autographs, and social media marketing. It is silent on television or film appearances and to me, that can (and maybe even should) raise the dreaded “what if” question. This was a great first step, but at first glance, completely overlooks high school student athletes. Thankfully, I’ve spoken with Jason Sciavicco and he was able to shed some insight on the matter. In our conversation, I learned that the high school athletes in a series can indeed be compensated, but it must not be in connection to any athletic activities, instead, they can be compensated for the use of their name, image, and/or likeness in conjunction with a series and promotion of the project.
So, have the scales been balanced? Perhaps it’s time to have a deeper discussion on what this new level of equality should actually look like.
I’m not necessarily advocating for specifically allowing high school student athletes to also be able to profit from the use of their name, image, or likeness, partially because it could create a rift between parents and the student athlete as one cannot enter into a legally binding contract with a minor, unless a legal guardian also signs off on it. However, I am in fact advocating that taking a stance specifically prohibiting it seems ironic and makes the larger “push” to balance the scales seem disingenuous at best and those sorts of provisions should be done away with. At the end of the day, I’m not a politician, those aspirations are far behind me, but in the spirit of fairness, I think states should do more than just cherry pick when to try to create a level playing field. I also think that athletic conferences should not prevent student athletes from profiting in any capacity or risk losing their eligibility. Fair is fair across the board, and if a college student athlete can profit off the use of their name, image, or likeness, in a myriad of contexts, I do not see why high school student athletes are not afforded the same opportunity. There are movies made about high school student athletes, there are documentaries coming out following high school student athletes, so perhaps we should revisit the notion that states believe that high school student athletes also cannot get in on the action or otherwise, only make documentaries following colleges.
Stephon Burton is a rising 3L at Duquesne University School of Law in Pittsburgh, PA. He obtained his undergraduate degree from Washington & Jefferson College in 2019. He can be reached at [email protected] and on twitter @stephonburton3, Instagram @stephonburton, and LinkedIn https://www.linkedin.com/in/stephon-burton-7abb06125/