Name, Image & Likeness (NIL) Rights: An Update

NCAA Policy

Last fall we wrote an article about Name, Image & Likeness (NIL) Rights as it related to the NCAA’s interim policy change. That article was aimed at NILs for college student-athletes. North Dakota high schools are now part of the mix.

North Dakota High School Update

The North Dakota High School Activities Association (NDHSAA) is the governing body that oversees all high school sports, activities, festivals, and tournaments. The NDHSAA’s constitution and by-laws govern high school activities in the state.

On April 26, 2022, the NDHSAA Board of Directors considered NIL rights for high school athletics. At that time, Executive Director Matt Fetsch noted the NDHSAA office had received zero inquiries about NIL during the 2021-2022 school year. Regardless, the NDHSAA still took action on NIL rights. The NDHSAA Board of Directors approved an amendment to the language of Section II, Article VIII of its constitution by-laws to include a NIL provision. The amendment is underlined below:

INTERPRETATIONS SECTIONS I, II, III, IV, V, or Article VIII – Amateurism

Please note that this article attempts to define and distinguish between amateurism and professionalism. This section applies specifically to athletic contests and is not applicable to music and speech events. This particular section is in the By-Laws to protect a student and his/her high school days and also to deter him/her from committing an act which would affect his/her amateur standing as a prospective college athlete.

Art VIII – Section II. A student may benefit from the use of their name, image and likeness (NIL) consistent with current NDHSAA regulations.

This language is consistent with the NCAA’s interim policy from 2021. The NCAA found that college athletes could take advantage of their NIL rights and benefit financially from those rights, as long as the activity was consistent with local state laws. The NDHSAA’s amendment reflects that a high school student in North Dakota does not jeopardize his or her amateur status in high school or college athletics by benefiting from NIL rights.

There are some exceptions. The student cannot use their high school team, mascot, uniform, or logo in marketing. The student cannot be compensated for athletic performance. Schools cannot use NIL compensation to recruit students.

Do not expect to see your local basketball phenom doing local ads for a car dealership any time soon. But NIL rights extend beyond traditional marketing avenues, like television and radio. Nearly every high school student has a social media profile, and any one of those could be the next top social media influencer. The NDHSAA’s amendment clears the way for that student to use their NIL to cash in without worrying about eligibility for activities.