Doc's Dose of NIL - "Policy Pulse" Edition

Analyzing State High School Association Name, Image, & Likeness (NIL) Regulations

Alright everyone, welcome to the first Doc’s Dose of NIL - “POLICY PULSE” edition.

As a self proclaimed “policy nerd” I love diving into state athletic associations policies to try to understand the intricacies and uniqueness of development, implementation, and evaluation of regulations.

(And in case you didn’t know, my doctorate degree is in educational policy… I know, totally weird!)

I’ve advised on or helped write a few of high school association NIL policies in existence today, and when I give presentations, I always specifically cater my discussion to that specific states policy (or lack thereof) to ensure there is a bit more clarity in regards to what the rules actually are, and leadership considerations moving forward.

The “Policy Pulse” has been something that I’ve wanted to launch for quite a while, as many of the questions I receive are followed with,

“I didn’t know each state association had their own regulations / policies around NIL at the High School Level”

or

“I thought High School NIL regulations were the same as the College Level”

So, I’m excited to regularly dive deeper into the over 40 State High School Association Policies currently in place with a focus on

1. Outlining a specific High School State Athletic Association NIL Policy
2. Providing an analysis of the regulation(s), potential interpretations and considerations, and clarification of application(s).

Please note - We will USUALLY only look at one component of their NIL Policy. Many of these policies have numerous regulations, connections to other bylaws, etc. For this first one, we’ll go through the entire kit and kaboodle.

And in true policy fashion - a disclaimer:

Please understand that the following information is provided for educational and informational purposes only, and should not be construed as legal advice or as an offer to perform legal services on any subject matter. The content contains general information and may not reflect current legal developments or information (let’s face it, it’s fast moving, and it’ll depend on when you’re reading this!). We do not make any warranty, expressed or implied, about the accuracy or reliability of the information at this website or at any other website to which it is linked. Ultimately, the only organization that has control of the interpretation and application of it’s regulation is the state association itself.

So for the first edition we are going to head to the great state of Delaware.

Why Delaware you may ask?

Well a little history lesson - Delaware was the first state to ratify the US constitution and is officially known as “The First State”, so it seemed like the most appropriate starting place.

I also had the chance to present to at the Delaware High School Athletic Directors Association Conference last year, and they were a great group working to learn more as it become a reality (at that time, NIL had not been permitted yet).

Delaware High School Athletics Association & NIL Regulations Overview:

Delaware Interscholastic Athletics is overseen and regulated by the Delaware Interscholastic Athletic Association.

It is also interesting to note that the NIL regulations for Delaware are directly tied to their amateur status as defined by the Delaware’s Administrative Code. It explicitly states that this status is comprised if a student “uses their athletic position to endorse commercial products or services through various media forms,” (among other conditions within the regulations).

Regulation 1030 (Student Athlete Eligibility: Amateur Status) -

received changes specific to NIL that were officially approved through a unanimous vote by the DIAA board of Directors, and if you read through the public notice document attached, they work through “impact criteria”, which is great.

They asked tremendous questions regarding the overall impact of the NIL regulations and changes to the amateur status (student athlete eligibility) on student achievement, student health and safety, as well as authority, accountability, and even costs related to the administrative requirements of the local school.

It’s important that whenever policies are changed, there is a clear discussion of the:

• Development: Why are we doing this?
• Implementation: How are we doing this, and what’s the overall impact?
• Evaluation: How are we evaluating the impact of this each year to ensure it aligns with our mission / values?

Usually 1 & 2 are covered in detail and well thought out, but 3 often isn’t something that is really discussed because it can be hard to do.

As a former school board member myself (post teaching career), I developed a development, implementation, and evaluation guide during my doctoral research that supported boards in asking the right questions, at the right time, to ensure the best possible outcome.

(Because let’s face it, we don’t always know what’s truly going to happen, but I’m a firm believer schools and school governing organization are truly doing their BEST!)

Regulation 1030 - Section 3.0 - Eligibility: Amateur Status -

has many provisions within it, but when considering NIL there is one specific in the subsection of the Amateur rule that says:

“A student forfeits amateur status if the student does any of the following in subsections 3.2.1 through 3.2.7”

All of these subsections are important to understand in regards to NIL, but, 3.27 states that a student forfeits amateur status if:

3.2.7 - The student uses the student’s athletic status to promote or endorse a commercial product or service on the internet; in a newsprint, radio, television advertisement or any other form of media; or by personal appearance.

It’s interesting to note that in many states, there are questions around athletic status vs. athletic fame. vs. athletic participation. Some states have even changed their specific wording to reflect how they want to interpret it.

Ultimately, it’s best to always remember that:

NAME, IMAGE, & LIKENESS ACTIVITIES ARE SEPARATE FROM A STUDENT-ATHLETES HIGH SCHOOL ATHLETIC PARTICIPATION.

Now, I always get people saying - “yeah, we know that’s what it is supposed to mean, but let’s face it, that’s not what’s happening in practice, because their high school athletic status/ability is why they’re getting NIL opportunities.”

I’m not going to argue that point in many cases, BUT, it’s hard to really take someone’s view on where a student-athlete is achieving their notoriety to court, even if they did throw for a state record 8 touchdowns (hypothetically speaking).

Just remember - performance, marketability, and participation are very different things.

Regulation 1030 - Section 3.4 -

“Notwithstanding subsections 3.2 & 3.3, a student may earn compensation from the use of the student’s name, image, and likeness provided that the compensation:

• not contingent on specific athletic performance or achievement
• not provided as an incentive to enroll or remain enrolled at a specific school
• is not provide by the school or any person acting as an agent for the school

If a student earns compensation from the use of the student’s name, image, and likeness, the student shall follow the requirements in subsection 3.4.1 through 3.4.5.”

The majority of high school state association NIL policies include the above, which are items that I often refer to as, “anchor guidelines.”

These anchors are utilized as an overarching starting point regarding NIL compensation, and as more states develop their policies, you’ll seem them used (almost explicitly) in all of them.

Then the policies will dive deeper into what I refer to as “activity guidelines”. These regulations usually are specific to NIL activities, and what a student may or may not do.

In Delaware, there are 5 included:

• 3.4.1 The student shall not use marks, including the Member School logos, school name, school mascot, or any trademarked DIAA logos or acronyms.
• 3.4.2 The student shall not wear Member School apparel or equipment which includes school name, school logo, school mascot, or any apparel displaying trademarked DIAA logos or acronyms.
• 3.4.3 The student shall not use a Member School facility for the purpose of name, image, and likeness compensation.
• 3.4.4 The student shall not endorse tobacco, alcohol, or gambling products.
• 3.4.5 If the student signs an agency contract under 24 Del.C. §5409, the student shall inform the athletic director for the student's Member School of the existence of the contract not later than 72 hours after entering into the contract or before the next scheduled athletic event in which the student may participate, whichever occurs first.

Again - many of these are commonly found within the NIL regulations of other state associations, but I’m always interested in any disclosures that are being required, meaning, do the regulations require a student-athlete to disclose their NIL agreement to the DIAA member school, and if so, what are the specificities of that disclosure.

So Parents of Delaware student-athletes considering NIL activity...

If you choose to enter into an NIL agreement, you HAVE some ELIGIBILITY requirements to do on the part of the school PRETTY QUICKLY!

Analysis of 3.4.5 - Disclosure

I’ll be honest, many high school AD’s / Administrators that I talk to get nervous about disclosures. They worry about liability, what they’re being required to do with that information.

But, for the most part as I tell them, the disclosure can be built in a way similar to other paperwork required by state association regulations, it’s just important to always ask the association 3 questions:

1. What information am I being required to gather?
2. After that information is disclosed to me by the student-athlete, what am I supposed to do with it? (in regards to the state association)
3. What happens if I know a student has entered into an NIL agreement, but they never disclosed that agreement per the regulation? (remember - it says within 72 hours, or before their next athletic event. That seems quick…)

#3 can always get a little tricky.

Do all high school associations that permit NIL activity require a disclosure?

NO. (but many do).

Do all high school association that require a disclosure require it to be submitted to them?

NO. (but some do).

Do all high school associations that require a disclosure follow the same length of time?

NO. (Some are 5 days. Some are 7 days. Some are 72 hours.)

And let's face it, there isn’t a single AD on this planet that wants one of their student-athletes to violate any regulation, or turn them in for it.

Now, I didn’t say they won’t do it, I just said, AD’s are some of the greatest, most hardworking individuals I’ve ever worked with, and they truly love high school athletics. But they’re slammed, and anything added on to their plate that requires additional effort is a fear from the beginning.

But let’s dive back into that disclosure for a second…

• 3.4.5 If the student signs an agency contract under 24 Del.C. §5409, the student shall inform the athletic director for the student's Member School of the existence of the contract not later than 72 hours after entering into the contract or before the next scheduled athletic event in which the student may participate, whichever occurs first.

When I read through this, there are a few questions that I arise....

Why such a short time frame, especially with the “or” component of a scheduled athletic event.

• I’m assuming this is so that they can ensure no violation of Section 1030 is occurring, but this is where I would need absolute clarification regarding what me (as the AD) is required to gather & do…

If a SA signs a contract on a Tuesday morning, comes to the me (as the AD) on Tuesday afternoon because they have a game that evening, I may not have the time to sit down with them and talk about everything — So, am I good since they let me know they did it?

• Putting my AD hat on - I don’t really want to touch the contract, especially if it has financial information on it, and let’s face it, they’ve already entered into it.
• I would assume I need to sit down with them and ensure the contract doesn’t explicitly violate the regulations, but I don’t know specifically what else they have to disclose because it says they just need to let me know that the contract exists.

Am I calling the state association with the student-athlete and discussing the NIL contract to ensure compliance of the student-athlete amateur NIL regulations?

• Who is my point of contact at the DIAA that I can utilize as a resource under this short time frame?
• Does this disclosure require a disclosure to the DIAA?

Honestly, I could keep going, but, at the end of the day, the goal of all of the questions for everyone involved is to ensure SAFETY and COMPLIANCE for the student-athlete so that they don’t lose their opportunity to compete for their high school teams in their respective sports.

I’m hopeful the DIAA has held numerous educational sessions with their AD’s, going line by line of these bylaws, allowing for questions, clarifying processes, and ensuring everyone is on the same page, because let’s face it, the AD’s are going to get questions if something happens.

I also hope that they are actively supporting the AD’s / Schools with resources that help them educate their student-athletes & parents, and aren't focusing on utilizing services that are directly helping student-athletes monetize.

There are different types of NIL education and NIL educators out there, and it’s important to do their due diligence.

If you’ve made it this far you might be wondering what in the world does all of this mean, or how can anyone understand what these regulations actually mean?

And I get it.

It’s a lot, even for me, and I absolutely love reading through these to try to understand the “pulse” (pun intended) of NIL within a respective state.

But policies and regulations are built to be intentional guidance for all involved, and as this new normal continues in the high school educational based athletics environment, it’s imperative that state associations, schools, and their stakeholders are on the same page regarding how to best keep student-athletes SAFE and COMPLIANT no matter if they intend to enter into NIL activities or not.

Alright - that’s enough NIL Policy for one day.

Another state, another High School NIL policy coming soon.

Here to help!

- Doc G

****Need help understanding High School NIL --- Download our NIL Prep Kit, the #1 resource for supporting high school stakeholders in understanding this new normal in high school athletics.

NIL Prep Kit for Student-Athletes / Families - https://bit.ly/NIL-Prep-Kit-SA-Families

NIL Prep Kit for School Administrators - https://bit.ly/NIL-Prep-Kit-School-Admins

Dr. Scott Grant, or “Doc G” as his students call him, is former high school teacher, coach, and athletic director turned college professor in educational leadership / social media / branding, and founded Triple Threat Leadership, LLC. (www.triplethreatleadership.com) & NIL-Education (www.nil-education.com).

Email / call him at ---> [email protected] | 419.306.3002

Need resources for Personal Branding & Social Media Education? Check out Dr. Grant's "Branding of ME" course, utilized by over 10,000 students, and integrated into hundreds of school curriculums across the country.

Learn more ---> https://www.triplethreatleadership.com/branding-of-me-course

Need help navigating Name, Image, and Likeness and preparing your program??Dr. Grant offers services to assist, and will develop specific tools / resources that fit your districts need.

Learn more ---> https://bit.ly/TTL-NIL-Educ-Services-Overview

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