Ohio's High School NIL Rule Change Reflects A Broader Trend In Changes To High School Athlete Compensation

Key Takeaways

• Ohio joins most states in allowing high school athletes to earn NIL income, following a lawsuit and an OHSAA vote (447–121 in favor).
• High school NIL rules include strict limitations—no school association in endorsements, no pay-for-play, no school/booster involvement, and bans on certain product categories.
• Trend mirrors college NIL changes, but high school policies focus on protecting students and personal branding, while college rules aim to share revenue and compensate athletic contributions.

Ohio State High School Athletic Association Ruling

On November 24, the Ohio High School Athletic Association (OHSAA) announced a rule change allowing high school student-athletes in Ohio to make money from their name, image and likeness (NIL). This decision followed an emergency referendum in which OHSAA's 815 member schools voted 447-121 in favor of allowing NIL deals, with 247 schools abstaining. The vote marked a significant shift in Ohio's approach to amateur athletics and aligned the state with the growing national trend toward NIL rights for high school athletes.

The referendum came after legal pressure from a lawsuit brought by Jasmine Brown on behalf of her son, Jamier Brown, a top high school wide receiver prospect in Ohio, claiming that Jamier had lost more than $100,000 in potential NIL deals because of OHSAA's ban. The Browns argued the restriction unlawfully limited athletes' ability to participate in a legitimate marketplace for their NIL rights. On October 20, the Court of Common Pleas in Franklin County, Ohio, issued a temporary restraining order (TRO) enjoining OHSAA from enforcing its constitutional and bylaw provisions that prohibited NIL deals. With the TRO and a subsequent vote, Ohio now joins the majority of states in allowing some form of NIL activity for high school athletes.

Refresher on House Settlement

Debates about NIL issues for athletes continue to be a hot topic after the court approved the House settlement on June 6. The House settlement refers to the resolution of the antitrust lawsuit House v. NCAA, where plaintiffs alleged that the National College Athletic Association (NCAA) and its member schools unlawfully restricted student-athletes from profiting from their athletic performance and individual brand value. As part of the settlement, schools can begin sharing up to 22 percent of qualifying athletics revenue with student-athletes, with a cap of $20.5 million in Year 1. This revenue-sharing model represents a fundamental shift in college sports economics. In addition to revenue sharing, the settlement reaffirmed student-athletes' ability to earn compensation for NIL activities, subject to certain restrictions.

State NIL Rules

States enforce NIL rules for high school athletes through legislation, amendments to athletic association rulebooks or both. While most states now permit NIL activities, a handful – including Alabama, Hawaii, Indiana, Kansas, Michigan, Missouri and Wyoming – still enforce prohibitions. These states generally maintain strict definitions of amateurism that bar athletes from accepting NIL money. For example, Alabama prohibits "accepting remuneration" for sports activities and limits awards to $250 in value, excluding trophies, medals and championship rings. Similarly, Kansas allows payment for teaching athletic skills but does not permit NIL deals. Missouri provides a narrow exception, allowing athletes to accept merchandise worth up to $250 per month under Rule 3.6.5(d)(2), though NIL activities are otherwise prohibited.

A few states limit NIL activities to imminently graduating athletes. Mississippi permits NIL agreements for students who have signed a National Letter of Intent (NLI). Texas allows NIL deals for students age 17 or older who have exhausted their remaining high school eligibility. Arkansas provides similar allowances for students who have signed an NLI to attend an Arkansas state school.

Most states, however, have revised their definitions of amateurism so that high school athletes no longer lose their amateur status by accepting independent NIL offers. These high school athletes can earn compensation from NIL activities, with limited restrictions. NIL activities generally include commercial endorsements (e.g., on social media) by an individual high school athlete. Most states have simply revised their amateurism rules to create an exception for NIL activities. For example, in mid-2022, Minnesota approved an NIL policy for high school athletes to engage in NIL activities without losing their amateur status. These rule changes allowing NIL activities, including Minnesota's NIL policy, are subject to limitations that vary from state to state. Still, these rules all generally include the four common limitations discussed below.

Four Common Limitations in State NIL Rules

First, states typically prohibit high school athletes from being associated with their school in NIL endorsements. This means, for example, high school athletes cannot appear in team uniforms or otherwise be associated with their school or team in NIL promotions. This restriction is designed to prevent schools from compelling high school athletes to participate in NIL activities and emphasizes the separation between the brands of the school and of the student-athlete. It also protects the school's intellectual property rights. This would not prohibit a high school athlete from wearing a generic uniform with a color scheme similar to that of their school so long as the school's intellectual property rights are respected.

Second, states typically enforce a no pay-for-play policy. High school athletes cannot accept compensation conditioned on athletic performance or enrollment or continued enrollment at a particular school. This prohibits high school athletes from accepting NIL deals with a condition requiring them to stay at their current school. This safeguard is designed to protect high school athletes from coercive NIL arrangements with their schools or individual commercial sponsors. For instance, it prevents high school athletes from facing immense financial pressure during competitions because of performance-based NIL agreements.

Third, states prohibit NIL benefits provided to high school athletes by schools or their agents, including boosters. Some states phrase their rules to entirely prohibit the school or its agent from being involved in any high school athlete's NIL activities. Other states also prohibit high school athletes from engaging in NIL activities during team activities, including practice and competitions, or in school facilities. These rules prevent schools from using NIL as a recruiting tool and maintain a clear separation between a school's brand and the athlete's individual brand, like the prohibitions on school associations. And it prevents high school athletes from entering coercive deals with schools, just like the pay-for-play restrictions.

Finally, many states restrict NIL deals involving certain categories of products. For example, New Jersey prohibits NIL activities related to adult entertainment, alcohol, tobacco, cannabis, controlled substances, prescription drugs, gambling and firearms. These restrictions aim to protect student-athletes' reputations and uphold public policy by avoiding associations with highly regulated or controversial industries. These restrictions are distinct from others because of the focus on public policy rather than on separating schools from high school NIL activities.

Policy Differences Between High School and College NIL Rules

High school NIL regulations aim to safeguard high school athletes while also letting them earn money from their individual brand value. These rules prevent schools from treating high school athletes as commercial assets while enabling individual high school athletes to capitalize on their marketability. As a practical matter, high school NIL opportunities tend to benefit elite high school athletes in high-profile sports. In the future, high school athletes with significant social media followings will also likely benefit from these high school NIL rules.

College NIL rules, by contrast, seek to compensate college athletes for their athletic contributions within a multibillion-dollar industry. Under the House settlement, college athletes can receive a share of athletics revenue separate from NIL income, meaning college athletes without brand recognition can still receive payment for their athletic contributions. College athletes also earn NIL income through endorsements. NIL deals frequently influence recruiting decisions because high school athletes can receive college NIL offers before committing to a program.

Conclusion

The changes to high school NIL rules seem to be a direct response to the changes to college NIL rules, but the policy objectives behind high school and college rules remain distinct. High school frameworks prioritize student protection and personal branding, while college regulations focus on compensating athletes for their role in generating revenue.

Allowing NIL activities in high school, though restricted by the limitations discussed above, shows that public policy around high school athletes has evolved from simply maintaining their amateurism to both maintaining their amateurism and enabling their compensation. In light of the success of Jasmine Brown's lawsuit, the remaining states that prohibit high school NIL activities may likely either face similar challenges or implement similar rule changes.

The shift toward allowing high school athletes to accept NIL deals is a major change from the amateurism rules of the past but consistent with recent trends in the compensation of athletes at every level. Further developments in the NIL area will likely align with this trend, providing high school athletes more freedom to accept athletics-based compensation without sacrificing eligibility.