By: Conner Glass, Church Church Hittle + Antrim
Indiana high school student-athletes may now profit from their name, image and likeness (NIL) without jeopardizing their amateur status. The Indiana High School Athletic Association (IHSAA) Board of Directors approved its new “Personal Branding Activities” (PBA) bylaws during the association’s annual review meeting last May.
The approval of the new PBA rules marks a seismic shift in Indiana high school athletics. Prior to the approval, Indiana was one of only a handful of states that still prohibited NIL monetization for high school athletes. Although Indiana still lacks any sort of state law on the matter, the IHSAA has decided to catch up with the rest of the country.
Under the new bylaws, student-athletes may “monetize their brand through social media, personal appearances, and endorsements unrelated to their school athletic participation.”[1] Students may not, however, represent their IHSAA member school or perform athletic services as part of what the IHSAA refers to as their “PBA activities”.[2] Additionally, students may not enter into any PBA deals affiliated with gaming or gambling, alcohol, tobacco, cannabis, illegal or banned substances, sexually explicit material, or firearms or weapons.[3]
The PBA bylaws require students engaging in “PBA activities” to notify their school’s athletic director in writing within 48 hours of entering into any PBA agreement.[4] Schools are required to provide annual educations to student-athletes regarding PBA rules, requirements, and potential consequences of violations, which may amount to up to a year of ineligibility.[5]
Notably, the IHSAA seems to be primarily focused on differentiating its PBA rules from the current NIL landscape in college athletics. “Unlike the current college system, where schools often play a direct role in NIL compensation, the new rules keep high schools out of arranging or funding deals for student-athletes,” IHSAA Commissioner Paul Neidig said in a public statement.
However, this distinction may prove to be more difficult than the IHSAA anticipates. For example, the PBA rules prohibit student-athletes from accepting benefits from “PBA collectives that work on behalf of, in conjunction with, affiliated with, or for the benefit of any Member School.”[6] What if a business owner who has donated to a school in the past wants to pay a student-athlete to promote her business? Is that business owner considered a PBA collective affiliated with the school?
The NCAA has been dealing with a similar issue, as payments from “associated entities” count towards an institution’s revenue sharing cap. There has been disagreement among college sports stakeholders as to what is considered an “associated entity,” with the most recent example involving the University of Nebraska, in which a neutral arbitrator ruled in favor of the College Sports Commission’s decision to reject NIL deals coming from associated entities that exceeded the cap. Now, the parties are looking to the courts to resolve their disagreement.
The IHSAA has already published a Q&A and hosted an educational webinar on its new PBA rules, but the most important thing to monitor moving forward will be how these rules are enforced.
[5] IHSAA Rule 5-7.4(d); 5-7.5(a).
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