Ohio High School Athletes Next in Line for NIL Deals?

Michael W. Goldman and Nicholas L. Simon

Ohio may become the next state to allow high school athletes to commercially capitalize on their name, image, and likeness (“NIL”) without foregoing athletic eligibility, less than a year after collegiate student-athletes in Ohio were granted similar NCAA eligibility protection.  

The NCAA’s Interim NIL Policy^[1] and Executive Order 2021-10D^[2] signed by Governor DeWine on June 28, 2021, allow student-athletes at Ohio’s public and private colleges and universities to seek and receive compensation for the commercial use of their NIL and prohibit colleges and universities from enforcing any rule that prevents a student-athlete from participating in college athletics because that student-athlete engaged in permitted NIL activity. The NIL Policy and the Executive Order have led to substantial NIL commercial activity by student-athletes at Ohio colleges and universities. According to a press release^[3] issued by Ohio State, in the first 6 months after the Executive Order became effective, a total of 220 Ohio State student-athletes have engaged in 608 reported NIL activities earning total compensation of $2.98 million.

However, the NIL Policy and Executive Order had no impact on high school student-athletes whose eligibility to play high school sports is governed by the Ohio High School Athletic Association (“OHSAA”). The OHSAA Bylaws apply to all participants in interscholastic athletic contests involving students in grades 7-12. Currently, a high school student-athlete forfeits their high school athletic eligibility if the student-athlete accepts “money, merchandise or services of value based in whole or in part upon the notoriety the athlete received through his/her athletic skills and achievements” (OHSAA Bylaw 4-10^[4]). High profile high school student-athletes in Ohio are placed in a predicament—capitalizing on NIL activity will likely not impact their NCAA eligibility but engaging in NIL activity will make them ineligible to participate in high school sports in Ohio. It was widely reported that former Ohio State quarterback Quinn Ewers skipped his senior year of high school football in Texas to enroll at Ohio State early, at least in part due to his inability to profit off his own NIL as a high school athlete in Texas and maintain his eligibility to compete in Texas high school athletics.

Times may be changing for high school athletes in Ohio. In early April, OHSAA announced that the OHSAA Board of Directors approved a proposed NIL policy^[5] (the “Proposed NIL Policy”) that would  allow student-athletes to enter into contracts using their NIL for a commercial purpose. The Proposed NIL Policy includes a handful of restrictions/prohibitions similar to the restrictions in the Executive Order applicable to collegiate student-athletes: (1) the student-athlete may not use the name, logo, mascots, and other intellectual property of the student-athlete’s school/team during any NIL activates, (2) student-athletes will be prohibited from entering NIL deals with companies that do not support the mission of education-based athletics (casinos, gambling, alcohol, drugs, tobacco), (3) NIL activity during “official team activities” is prohibited, and (4) NIL agreements may not provide money or any other benefits directly to the student-athlete’s school/team.

The OHSAA member schools will vote electronically on the Proposed NIL Policy during the annual referendum voting period from May 1 to May 16. A simple majority is required to pass, and if passed, the Proposed OHSAA NIL Policy would become effective on May 16, 2022.

Should you have any questions or need assistance, please contact us.

Michael W. Goldman
513.579.6961
mgoldman@kmklaw.com

Nicholas L. Simon
513.579.6574
nsimon@kmklaw.com 

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[1] http://ncaaorg.s3.amazonaws.com/ncaa/NIL/NIL_InterimPolicy.pdf 

[2] https://governor.ohio.gov/media/executive-orders/executive-order-2021-10d 

[3] https://ohiostatebuckeyes.com/ohio-state-creates-nil-edge-team-updates-guidelines/ 

[4] https://ohsaaweb.blob.core.windows.net/files/About-the-OHSAA/Bylaws.pdf 

[5] https://ohsaaweb.blob.core.windows.net/files/SchoolResources/refvote/FINAL-2022ReferendumItems.pdf