Press Release

By: Josh Goldberg, Esq.

As anticipated, fascinating developments are underway in the realm of high school athletics in Florida as the Sunshine State joins the ranks among fellow governing bodies that are embracing Name, Image and Likeness (NIL) rights for student-athletes.

This week, the Florida High School Athletic Association (“FHSAA”) unanimously approved NIL for high school sports, setting sights for deals to begin later this summer. The Florida State Board of Education will need to ratify the new rule at its next board meeting on July 24, 2024, for it to become effective.

The Scope of High School NIL

Florida now becomes the 36^th state to approve high school NIL. As the third most populous state in the U.S., the FHSAA was well behind neighboring states that enacted high school NIL earlier. At the collegiate level, the state of Florida led the way with an assertive start date for collegiate NIL on July 1, 2021, which other states and the NCAA followed, including California, whose NIL bill was not initially going to take effect until 2023.

While the approval of NIL rights for high schoolers offers new avenues for student-athletes to monetize their talents, the reality is nuanced. For instance, the Georgia High School Association implemented similar measures in October 2023. However, a recent article reported that only 44 out of 429,714 high school athletes in Georgia have entered into NIL agreements.

FHSAA Policy 9.9 Amateurism and Name, Image, and Likeness (“NIL”)

The FHSAA’s updated Policy 9.9 outlines the framework for high school NIL activities. Specifically, student-athletes and their parents/guardians will be required to negotiate any NIL activities independent of their school, school district, or the FHSAA. Restrictions are also placed to prohibit student-athletes from monetizing their name, image, and likeness with the use of their school’s uniform, equipment, logo, name, proprietary patents, products, and/or copyrights associated with an FHSAA member school, and/or school district, either in public, print, or social media platforms. If a student-athlete wants to use their school’s intellectual property, they will need written consent and license from their school.

Any Florida high school NIL agreement is limited to a student-athlete’s high school period of athletic eligibility and shall not extend beyond a student-athlete’s high school graduation date. This language mirrors Florida’s original NIL bill, that has since been amended to take out a restriction on NIL deals extending past a player’s college eligibility. However, this type of clause may end up protecting Gervon Dexter, a former University of Florida football player who entered into a NIL deal tied to his future earnings (extending past his collegiate eligibility) and is now suing the company to find the contract invalid amongst other claims. Similarly for high schoolers, this clause is designed to protect teenagers from predatory contracts, whether from a brand, agency, or manager, that locks a minor into a long-term deal. As many high school aged student athletes signing NIL deals are minors, a parent or guardian will also need to sign the contract.

In addition, a Florida circuit court may approve a contract under Florida Statute 743.08, titled Removal of disabilities of minors; artistic or creative services; professional sports contracts; judicial approval.

(1)   A contract made by a minor or made by a parent or guardian of a minor, or a contract proposed to be so made, may be approved by the probate division of the circuit court or any other division of the circuit court that has guardianship jurisdiction, where the minor is a resident of this state or the services of the minor are to be performed or rendered in this state, where the contract sought to be approved is one under which:

(c)   The minor will endorse a product or service, or in any other way receive compensation for the use of right of publicity of the minor as that right is defined by s. 540.08.

Fla. Stat. 743.08(3)(a) goes on to state: If a contract described by subsection (1) is so approved by the circuit court pursuant to the requirements of this section and the requirements of ss. 743.09, 743.095, and chapter 744, the minor may not, either during his or her minority or upon reaching his or her majority, disaffirm the contract on the ground of minority or assert that the parent or guardian lacked authority to make the contract.

Other Limitations and Prohibitions

In order to uphold ethical standards and protect the integrity of high school athletics, certain categories of products and services are off-limits for NIL activities. Such categories of products and services include the following:

(a) Adult entertainment products and services;
(b) Alcohol, tobacco, vaping, and nicotine products;
(c) Cannabis products;
(d) Controlled substances;
(e) Prescription pharmaceuticals;
(f) Gambling, including sports betting, the lottery, and betting in connection with video games, online games, and mobile devices;
(g) Weapons, firearms, and ammunition; and
(h) NIL Collectives.

Notably, the FHSAA’s prohibition against NIL collectives diverges from precedents set by other states, assumingly aimed to mitigate recruiting risks akin to college athletics. The prohibition on collectives is included to minimize recruiting risks in which high school athletes are induced to transfer schools from across the country or state similar to college athletes.

According to a transcript from the FHSAA’s vote, there were discussions about what a “NIL Collective” means as the FHSAA’s rules do not clearly define it. High schools already have booster clubs that support high school athletics and should not be deemed NIL Collectives. According to the transcript, booster clubs support “whole programs” including one or multiple sport teams, while a collective means a group of individuals or businesses which would individually support selected athletes.

Section 9.9.4.4, titled Representative of a School’s Athletic Interest, will be updated to state that “No school employee, athletic department, staff member, or representative of a school’s athletic interests, including athletic boosters and booster clubs, and NIL Collectives, which include, but are not limited to, groups, organizations, or cooperative enterprises that exist to collect funds from donors and businesses, to help facilitate NIL deals for student-athletes, and/or create ways for athletes to monetize from their NIL.”

Furthermore, Section 9.9.2 outlines activities that may impact a high schooler’s amateur status and include:

(a) Competing for money or other monetary compensations;

(b) Receiving any award or prize of monetary value which has not been approved by the FHSAA;

(c) Capitalizing on athletic fame or performance by receiving money or gifts of a monetary nature;

(d) Signing a professional playing contract in any sport or hiring a registered agent to manage

his/her athletic career, other than for the purpose of advising on NIL related matters;

(e) Competing under an assumed name; and

(f) Accepting a Name. Image, and Likeness (NIL) agreement that does not adhere to FHSAA Bylaw 9.9.

If a Florida high school athlete is going to hire a NIL agent or representative, the agent must be a registered Athlete Agent with the Florida Department of Business and Professional Regulation (“Florida DBPR”), or the representative must be a licensed Florida Bar Attorney in Good Standing. You can verify if someone is a registered Athlete Agent by searching the Florida DBPR website here.

As Florida gears up to ratify high school NIL, students and institutions will now have to prepare from a compliance standpoint on how to best navigate the NIL world without it impeding high school sports. High schools should implement rules and policies surrounding NIL as well as reporting procedures to the athletic department similarly to collegiate athletics.

If you have any inquiries regarding the subject of Name, Image and Likeness, or require representation in navigating this evolving landscape, please feel free to contact me at [email protected].

The post High School NIL Arrives in Florida: How to Navigate a New Era of High School Sports appeared first on Greenspoon Marder LLP.