July 1, 2021 was a monumental day for college athletics. College athletes were finally given the right to profit from their name, image, and likeness (NIL). College athletes were finally allowed to get a small piece of the billion-dollar pie that their labor propels. This seismic shift in college athletics was largely driven by the effort of the Florida State legislature which enacted the "Intercollegiate Athlete Compensation and Rights Act" on July 1, 2021. The Act sought to give college athletes in the state the ability to profit from their NIL. Soon after, several other states followed suit with own NIL law with the same effective date. This ultimately led the NCAA to amend its rules to allow college athletes to profit from their NIL.
While most college athletes (many international college athletes still cannot enjoy NIL rights) were given NIL rights that day, the NIL issue for high school athletes went largely unaddressed. A few states, like Texas, made it clear in their NIL law that Texas high school athletes are precluded from engaging in NIL activity. However, most states left the issue to their state's high school athletics association. Florida was one of those states. Accordingly, it looks like the state of Florida might the lead charge for high school athletes' NIL rights as well as two Florida athletes have filed a lawsuit seeking to expand NIL rights.
The Dawn of the High School Athletes' NIL Rights Movement
The name, image, and likeness rights movement for high school athletes is certainly underway. High school baseball standout Sal Stewart and college football star Gilbert Frierson have sued the Florida High School Athletic Association (FHSAA), the NCAA, and the National Federation of State High School Associations (NFHS) seeking to expand the NIL rights of interscholastic and intercollegiate athletes. Stewart attends Westminster Christian School and is committed to play baseball for Vanderbilt and Frierson plays football for the University of Miami.
Stewart seeks to invalidate the FHSAA rule that prohibits high school athletes from engaging in NIL activities. FHSAA bylaw 9.9.2(c) states that a "student-athlete forfeits amateur status in a particular sport for one year by "[c]apitalizing on athletic fame by receiving money or gifts of a monetary nature." In short, the rule prohibits high school athletes from making money based on their athletic fame. Similarly, Frierson is seeking to invalidate a provision in Florida's NIL law that limits the length of NIL deals. Specifically, Frierson seeks to invalidate section 1006.74(j) of Florida's "Intercollegiate Athlete Compensation and Rights Act". That provision states college athletes cannot enter into a contract for compensation for their NIL "beyond her or his participation in an athletic program at a postsecondary education institution."
Both Stewart and Frierson were offered NIL deals from LifeWallet powered by MSP Recovery. LifeWallet allows individuals to store and control their medical and prescription data on a secure HIPAA compliant platform to give authorized healthcare providers access to their patients' medical history. Stewart is precluded from entering the deal due the FHSAA rule. Frierson was able to enter into a one-year deal only because Frierson has only one year of collegiate eligibility left. Per section 1006.74, NIL agreements may not extend beyond collegiate athletic participation. Both Stewart and Frierson allege the applicable rules unduly prohibit them from engaging in and getting the most out of NIL opportunities.
Similar to previous college athletes' NIL rights cases, Stewart alleges that the FHSAA and the NFHS rules violate Florida state antitrust laws. Frierson alleges that section 1006.74(j) of Florida's NIL law restricts college athletes' freedom to contract. This is almost certain to have major implications for the future of high school athletes' NIL rights as high school athletes should be able to profit from their NIL if such opportunity arises.