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High Schools, State Associations Facing Effects of NIL Ruling

By Nate Perry on September 08, 2021 hst Print

On June 30, 2021, about a week after the United States Supreme Court ruled unanimously that the NCAA had violated antitrust laws by limiting member schools’ education-related compensation to student-athletes, the NCAA Board of Governors voted to institute an interim policy that allowed college athletes to profit from their name, image and likeness (NIL).

In doing so, the NCAA effectively forfeited “absolute” amateurism, one of the foundational elements of its 115-year-old ideology. For the first time, NIL contracts carrying five-, six- and even seven- figure payouts are landing in the laps of marketable collegians, some of them only a couple of months removed from their high school graduation ceremonies. And while it is still too early to determine whether the landscape of college athletics has changed forever, it is certainly safe to say a new era has been ushered in.

With regard to high school sports, an obvious question has been raised: when, and to what extent, will monetized NIL opportunities reach high school athletes? The short and simple answer is, they already have.

Mikey Williams, a high-profile, highly recruited basketball player who attends Lake Norman Christian School in Huntersville, North Carolina, became the first prep athlete to sign with a major sports representation agency when he inked with Excel Sports in July. The agreement allows Williams’ representatives to negotiate NIL deals on his behalf, which could reportedly earn him “millions of dollars,” according to a Sports Illustrated article. (Lake Norman Christian is not a member of the North Carolina High School Athletic Association.)

Even more recently, Quinn Ewers, formerly known as the consensus No. 1 high school quarterback in the Class of 2022, chose to forego his senior year at Southlake (Texas) Carroll High School and earn the rest of his credits early to reclassify to the 2021 class. The reason? To take advantage of a substantial NIL contract waiting for him upon his enrollment at Ohio State University.

For the moment, these examples are the extreme outliers, and NIL has not infiltrated high schools on a widespread basis. Williams and Ewers are two of the most talented high school players in the country in their respective sports and – through the aid of social media – carry valuable name recognition, especially for the current generation of youth. Based on that perceived influence, it’s understandable why companies targeting younger markets would try to capitalize on the fame of these prodigies, and that lucrative endorsement offers such as Ewers’ deal with Texas-based beverage company Holy Kombucha, will require a similar combination of elite ability and visibility.

On the flip side, however, the fact that the new NCAA policy was barely a month old when Williams’ and Ewers’ NIL stories surfaced provides considerable intrigue – and perhaps concern – as to just how far this will go in high school sports.

In “The NFHS Voice” published July 7, NFHS Executive Director Dr. Karissa Niehoff established the NFHS’ stance on NIL opportunities involving explicit ties to an athlete’s state association, school, team, jersey, etc.

“While it is not our position to debate the merits of current college athletes earning money from their NIL, it should be understood that these changes do not affect current high school student-athletes,” Niehoff said. “Current high school student-athletes CANNOT earn money as a result of their connection to their high school team. Our member state associations have rules in place that prohibit student-athletes from receiving money in any form that is connected to wearing their school uniform.”

Later in the piece, Niehoff explained the reasoning behind the NFHS’ position, pointing out that high school athletics and college athletics serve different purposes, with high school more intently focused on teamwork, learning and building relationships with peers.

“High school sports, with almost eight million participants nationwide, are much different than college sports,” she said. “High school sports are about the team – not an individual’s own personal pursuit of excellence. The primary reason that an overwhelming majority of high school students play sports is to have fun and spend significant and meaningful time with their peers. It is a part of the overall high school experience, which, when combined with academic studies, prepares these students for life as adults in their chosen careers.”

Add in the fact that high school athletics is one of the premier platforms for teaching young people invaluable lessons and life skills such as responsibility, work ethic, self-confidence and time management. And for most of the eight million participants, their four years of high school will be their very last opportunities to learn those values within an organized sport setting. Considering those who earn college scholarships will have their NIL window once they enroll, and the strong possibility that only the chosen “big fish” like Ewers and Williams will check all the necessary boxes as high school athletes, the argument that NIL’s primary impact would be as a detriment to the healthy learning environment begins to pick up steam.

A similar philosophy was employed by the majority of the state association executive directors surveyed for this article, though many of them also admitted that they had to yet to devote a great deal of thought to it. Most cited a lack of lobbying from constituents and growing concerns over COVID-19’s resurgence as reasons for placing NIL on the backburner, but in a few states including Illinois, Mississippi and Texas, state laws stop the conversation before it can even get started at the association level.

“Even if we wanted to be more liberal with our rule – and we don’t – we wouldn’t be able to allow (NIL payments) by state law,” said Dr. Charles Breithaupt, executive director of Texas’ University Interscholastic League. “So, we’ve just been telling people, ‘listen, the legislature is the one you need to be dealing with here. It’s their law, and they get to interpret it the way they want.’”

The law, which was passed the day after the NCAA’s NIL policy, states that “no individual, corporate entity, or other organization may enter into any arrangement with a prospective college athlete relating to the athlete’s NIL prior to the athlete’s enrollment in an institution of higher education.”

That specific and concise language forced Ewers’ hand, leaving him at a fork in the road with two distinct options: soak up the irreplaceable experience of a final year of high school and risk losing a potentially life-altering payday, or put pen to paper and miss out on some of the most sacred memories a teenager can make.

And with the Lone Star State perennially boasting a bevy of elite high school talent across several sports (347 NCAA Division I athletes signed in 2021), Ewers probably won’t be the last phenom to leave when faced with the state’s legal ultimatum. Breithaupt agreed and compared the full-year opt-out to a more common practice in which athletes graduate in January, enroll in college a semester early, and get a jump on the next phase of their athletic careers.

“Those elite players – the four- and five-star (recruits) – they’re already opting out of spring sports,” said Breithaupt. “So, it just makes sense since you can get all this stuff online and you can take dual credits. If you finished football in the fall and you’re already going to go in January, why not just go ahead and speed it up, maybe take a summer course or two and graduate a year early? I have not been a proponent for that at all. But if someone came to me and said, ‘we’re going to give your daughter a million dollars just to use her name, image and likeness on some products’ – that would be hard. It would be hard to turn that down.”

Another group of states, which includes Alabama, Florida and Georgia, features NIL laws that strictly address “post-secondary institutions” and make no mention whatsoever of high school athletics. In Florida, another one of the nation’s deepest pools of high school blue-chippers, the law’s limited scope means the Florida High School Athletic Association (FHSAA) has the authority. And FHSAA executive director George Tomyn made it clear the association has no plans to integrate NIL at this time.

“Violation of amateur status,” said Tomyn in his initial thoughts on the issue. “A fundamental part of high school athletics is amateurism, and every student-athlete that participates for a member school in the state of Florida in an athletic competition must be an amateur. I would not promote any kind of NIL allowance because it violates the amateur concept in education-based athletics.”

Tomyn said the FHSAA office did receive a couple of calls shortly after the NCAA and Florida state legislature rulings came down, but a press release published July 8 that clarified that no changes had been made to the FHSAA bylaw regarding amateur status put a stop to the inquiries.

“We looked at our bylaws, and as soon as we printed that and posted (the release), we’ve had no more calls about it,” Tomyn reported. “So, that made it very clear to our member schools that we weren’t going to allow participation in NIL because it would violate the amateur status of our athletes.”

Joining Tomyn on the “staunchly opposed” end of the spectrum is Paul Neidig, commissioner of the Indiana High School Athletic Association. Like Tomyn, Neidig depicted NIL as a direct contradiction to the core elements of high school athletics but focused his opinion on the education piece rather than amateurism.

“I think in our entity, it’s very important that we really focus on the first word of what we do, and that first word is education,” Neidig said. “Many years ago, when our forefathers developed these associations, they wrote mission statements or statements of purpose, and every one that I’ve ever read focuses on the mission of promoting educational excellence in the classroom, first. And I think once we start incorporating things like name, image and likeness or paying for performance or favoring players with a higher level of skill – high school is not the place for that; not when we’re focusing on getting these kids a high school diploma and being the best we can be educationally, first.”

Aside from introducing an external motivational factor that doesn’t necessarily fit the education-based mold, the monetary implications of NIL activity create inherent disparities among teammates. Neidig referred to these as “separators,” and alluded to the potential challenges they can present to maintaining the chemistry and cohesiveness of the group.

“Let’s face it, everything we do has a team atmosphere to it, whether it’s an individual sport like cross country or a basketball team,” he said. “There’s a team dynamic of ‘one-for-all and all-forone’ and ‘we’re going to rely on each other.’ And when you say ‘well, I want to get mine over here from my name, image and likeness, but you’re not good enough to get yours,’ I think that institutes a dynamic in high school sports – especially at the juvenile age – that is going to be difficult for a lot of families and kids to deal with.”

The responsibility of managing those added variables – as with all team elements – ultimately falls on athletic directors and coaches. And while there certainly are activities leaders who are capable of preventing NIL involvement from dismantling their teams, there is just no way of knowing how complicated these situations will become and how much time will be necessary to rectify them. For athletic directors, a group known for being historically overworked even before the insanity of the COVID-19 pandemic, is there room to cram in another potentially cumbersome duty?

“I think any athletic director would tell you that our plates are pretty full,” said Augie Fontanetta, who chuckled before adding: “my wife would attest to that.”

Fontanetta is the athletic director at New Trier High School in Winnetka, Illinois, and though he resides in one of the aforementioned states with an existing law against high school NIL opportunities, he admitted he would be lost if he had to try to figure out how to handle them.

“I wouldn’t even know where to begin,” he said. “I would not take the role of an advisor or legal counsel or anything like that. I would probably be in a more supportive role, an educational role in the process. But I just think it puts the school and the player and their family in a tough spot. And it puts the coach in a tough spot, too.”

As Fontanetta mentioned, coaches’ jobs would be impacted dramatically by a policy permitting NIL payments. Between teaching their sports’ fundamentals and nuances, scouting opponents, organizing effective game plans and managing different personalities and priorities to get players striving toward a common goal, coaches must have a firm grasp on a variety of moving parts to be successful. The presence of a single NIL contract within a team dynamic has the potential to affect the attitude and playing style of every player on the team, making each aspect of coaching significantly more difficult to control.

“If we’re pushing that professional league dynamic in high school, and we have a majority of kids making nothing and then one kid making a lot of money, it’s going to cause problems,” said John Holecek, head football coach at Loyola Academy in Wilmette, Illinois. “It’s certainly not something that any coach is going to be happy to deal with. It’s a complete change, and kids aren’t mature enough to handle it for the most part. Hopefully, that won’t be the case, but you would think there’s going to be some tough situations out there for coaches to deal with.”

If NIL truly rises to prominence in the high school ranks, the possibility of coaches in non-NIL states losing players to transfer would become more and more realistic. In addition to schools belonging to standard state associations that are NIL-friendly, prospective transfers could also target prestigious college preparatory schools, or any of the nationally renowned “independent” sports superpowers that deprioritize the education-based model with their programs.

“I think that would be the big fear,” said Chris Roche, head basketball coach at Wilsonville (Oregon) High School. “You look at the independent operators, the basketball academies, the prep schools. I think a lot of what people are doing comes in the way of trying to set up the future. Well, you’re only young once, and today counts, too. Playing for your community and elevating your community and living and smiling and growing and learning and sticking to it when it’s tough – those things are valuable.”

Much of the impetus driving the emergence of NIL has been generated by the digital world of social media, which seems to be growing every day in influence and entrepreneurship opportunities.

“It’s the new capitalism,” said Holecek. “I had a player two years ago who graduated and had a podcast – a highly-rated podcast – and he’s getting money (for it) now. And I think he’s taking the year off from school and doing local stuff so he can continue this. So yeah, it’s capitalism, and you can’t really stop it.”

As of now, the California Interscholastic Federation (CIF) is the only NFHS member association with a bylaw that allows its participants to make money from their NILs. The policy, which was put in place several years ago to accommodate the state’s notably large number of children who are associated with the television and film industries, still prohibits the use of an athlete’s school name, logo or team uniform in commercial activity.

However, because of the same “can’t really stop it” social media mentality that Holecek spoke of, the New York State Public High School Athletic Association (NYSPHSAA) could soon join the CIF, with alterations to its Amateur Rule being voted upon in late October. The NYSPHSAA’s proposed language will read very similar to that of the CIF’s in that it also bans the use of school, school team, section or the NYSPHSAA name.

“I think there is going to be a shift in how high school athletics are viewed for some students,” said Dr. Robert Zayas, NYSPHSAA executive director. “The way that it’s trending right now with social media, students are perceived differently than they were 10 or 15 years ago.

“And I think that’s the difficulty right now is how you differentiate between capitalizing on your athletic fame and being a social media influencer. I don’t think we can differentiate between the two any longer. And I think that’s where it becomes problematic. If a student is a social media influencer, and they have 100,000 or 3 million followers, then I think it becomes very difficult as the state association to try to determine how those followers were generated. I think when we try to do that, we’re putting ourselves in a really precarious position.”

Zayas acknowledged that tracing the origin of some athletes’ large followings can be clear and obvious (e.g., Ewers and Williams), but noted the process can be quite muddled for others who generate well-received social media content that has no ties whatsoever to athletic ability. Evaluating that latter category of student-athletes, Zayas said, complicates the governing process.

“I think enforcing a consistent and equitable rule becomes the challenge,” he said. “Because if you’re going to say, ‘this student is capitalizing on their athletic fame, while this other student just happens to have 5 million followers because they’re very charismatic,’ it better be pretty clear as to how we came to that decision. I don’t think it would be in many cases, and if you look at our transfer rule or any rule that we have, we try to take the subjectivity out of it.”

While the NYSPHSAA’s new regulations would technically open a door for NIL payments that others would rather keep closed, it should be noted that the NYSPHSAA rule, along with the current CIF bylaw, still align with Niehoff’s comments on the use of specific school- and state-affiliated branding.

At the moment, NIL’s lasting impact on high school athletics is entirely unknown, with an accurate forecast impossible to predict. In the coming weeks and months, it is anticipated that many conversations will occur across the country, and some of them may end with adjusted amateurism language. But those decisions don’t have to define the future. Because the greatest “influencers” for playing high school sports aren’t found on social media.

“In high school, we always say the name on the front of your jersey is much more important than the name on the back,” said Fontanetta. “And I think that’s what we have to preserve in high school. When you’re a high school athlete, you play because you love the sport. You play because you want to be with your friends. You play because it’s something that’s a culture or a part of your community; something that you’ve been maybe following since you’ve been playing youth basketball or youth football or in a youth wrestling club. It’s not about yourself so much as it is the greater good.”

Editor’s Note: Chris Roche is the varsity boys basketball coach at Wilsonville High School in Wilsonville, Oregon, entering his 20th year as the varsity boys basketball coach there. The views he expresses in this article are his own and do not necessarily reflect the viewpoints or values of WHS or the West Linn-Wilsonville School District.