By: Brian DeSantis, Esq.
OHSAA recently passed an emergency referendum allowing student-athletes to earn money from their name, image, and likeness (“NIL”). The referendum established Bylaw 4-11 (“NIL Bylaw”), which will require districts to establish additional compliance practices and may prompt districts to review enrollment procedures and criteria for non-resident students. Among other changes, the NIL Bylaw prohibits the use of NIL agreements as inducements to transfer to a particular school and places the burden on districts to educate their broader “school community” about certain aspects of NIL. To assist districts in navigating these requirements, Pepple & Waggoner is offering counsel to clients through guidance materials, compliance notices, and staff training.
What is an NIL Agreement?
The NIL Bylaw defines NIL as “the use of self-publicity […] and/or the notoriety a student may attain to receive a benefit through appearances, licensing, social media, endorsements, and/or the use of branding.” The NIL Bylaw permits a student to enter into an NIL Agreement, but enumerates restrictions and other criteria. Among these restrictions are when and where NIL activities can occur (including a prohibition during school and team activities). A full list of restrictions is set forth in Bylaw 4-11-2 and is available on OHSAA’s website here. The NIL Bylaw also permits a board of education to establish additional restrictions.
Districts and Their “Agents” May Not Provide Agreements.
Notably, the NIL Bylaw provides that school districts and their “Agents” may not “provide” any NIL Agreement to students. An “Agent” includes district employees (administrators, coaches, and “other individuals” associated with the school) as well as third parties (booster clubs, foundations, and “collectives”). Booster clubs pose a compliance challenge because they operate independently of school districts, and leadership often changes from year to year. Districts should ensure booster groups understand these limitations and may want to memorialize these requirements in Board policies or even a memorandum of understanding with recognized booster groups.
Recruitment Prohibitions
The NIL Bylaw will also require schools and districts to ensure improper recruitment does not occur. The NIL Bylaw makes clear that a student may not enter an Agreement “that is provided as an inducement to attend a particular school.” The NIL Bylaw further provides that if a student transfers to a school and the transfer can be shown to be reasonably linked to the student’s NIL Agreement, “a rebuttable presumption shall exist that the student has been recruited.” A rebuttable presumption is a legal assumption that something is true until proven false. Thus, if a transfer is reasonably connected to an NIL Agreement, the student will be presumed to have been recruited, and the school bears the burden of rebutting that presumption.
Board Policies Regarding Enrollment
Although recruitment may not occur, the advent of NIL may prompt districts to revisit their policies and procedures for enrolling non-resident pupils. For example, districts that eliminated open enrollment or adopted strict deadlines and geographic or capacity limits may want to revisit their policies. Changes to open enrollment must be Board-approved and sent to the Department of Education and Workforce. Districts will want to understand the other bases and how they may create the appearance of NIL-related recruitment.
Districts are Charged with Training and Education
Furthermore, the NIL Bylaws expressly place the burden of educating others on the District. Specifically, the NIL Bylaws provide that “member school administrators and coaches” must educate the “school community” that “any attempt to facilitate an [NIL Agreement] to help secure the enrollment of a prospective student [will] result in penalties [under] Bylaw 11.” While the NIL Bylaw does not specify how education must be completed, it would be prudent to document the education provided. Pepple & Waggoner can assist districts in developing guidance and documentation processes to ensure compliance with this requirement.
Pepple & Waggoner is also available to provide clients with training tailored to specific groups (e.g., coaches or administrators) and these trainings—provided under the attorney-client privilege—allow for open discussion and clear, confidential guidance as districts adapt to this new regulatory landscape.
If you have any questions about the impact of the NIL Bylaw, contact partner Brian DeSantis Bdesantis@pepple-waggoner.com
