Georgia has joined the list of states that allow high school athletes to profit from their name, image, and likeness (NIL). On October 2, 2023, the Georgia High School Association (GHSA) added a new bylaw and guidance to its constitution to allow Georgia high school students to engage in NIL activities.
The guidance provides that a student-athlete can benefit from the use of their NIL without compromising their amateur status, provided certain rules are followed. These rules focus on pay-to-play restrictions, recruiting inducements, and intellectual property concerns but leave many unanswered questions for local school districts.
For example, the GHSA has specified that student-athletes cannot wear apparel or use equipment that contains their school’s name, uniform, logo, mascot, or a trademarked GHSA acronym or logo while participating in NIL activities. Student-athletes also may not use a member school’s facility for the “purpose” of NIL activities. However, that restriction is ambiguous.
There is no question that using school facilities to film an NIL commercial or endorsement video would be for the purpose of NIL activities and, therefore, a violation of the GHSA rule. But it is not as clear whether the GHSA intended to completely ban high school athletes from engaging in any NIL activity at their school. Is it permissible for a student-athlete to walk around school carrying a specific brand of water in connection with an NIL deal, for instance?
The GHSA also prohibits student-athletes from entering into NIL deals involving products and services that conflict with school district policies, such as alcohol, tobacco, and controlled substances. However, because NIL deals are new in the K-12 space, it is likely that school district policies have not yet fully contemplated the range of potential NIL opportunities. Consequently, most school district policies may not expressly prohibit student-athletes from engaging in NIL deals that touch on areas such as gambling, online sports betting, adult entertainment, and ammunition or weapon sales.
The parameters for the involvement of school district employees in helping with or coordinating NIL opportunities is especially murky under the new GHSA guidance. Indeed, while the GHSA has found that compensation for NIL activities cannot be provided by a high school or any person acting as an agent for the high school, the guidance does not specifically prohibit school district employees, contractors, and volunteers, including boosters, from brokering an NIL deal to be paid by another source or acting in a management or agency capacity for a student.
This lack of clarity and potential lack of separation between local school districts and student-athlete NIL deals could increase a school district’s exposure under Title IX. Just as school districts cannot allow private booster funding to create inequitable facilities and benefits for boys’ and girls’ athletic programs without running afoul of Title IX, there is similar Title IX exposure when a high school — or person working under the direction of the high school — is involved in helping student-athletes secure NIL money in a manner that is not equitable for male and female athletes.
The GHSA is also silent on other critical issues, including the financial implications of NIL deals for local schools and NIL limitations for international high school athletes. Consequently, school districts around Georgia will be well-served by creating their own policies and procedures to create more robust NIL guidance. School districts should consider the following questions when revising policies and procedures:
- Will student-athletes be allowed to endorse or promote the goods or services of an NIL partner during team activities and events?
- Are there categories of NIL deals that student-athletes will not be permitted to pursue (for example, gambling, online video game betting, weapons, ammunition, and adult entertainment)?
- Can school district employees, contractors, and/or volunteers broker, facilitate, coordinate, or negotiate a student’s NIL deal? If so, what are the limits of that involvement?
- Will the school district penalize a student-athlete who fails to disclose an NIL deal within seven days, as required by GHSA? What will be the resulting punishment?
- Are international student-athletes permitted to enter into NIL deals?
- What are the potential financial implications of an NIL deal on the local school?
- If an entire athletic team is approached with an NIL opportunity, what are the parameters around such NIL deals?
This is by no means an exhaustive list of things to consider. But by considering those questions and subsequently creating additional district-level guidance for student-athletes and school district employees, local school districts can create clearer parameters around NIL opportunities and hopefully mitigate Title IX liability for the entire district.
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