NIL for High School Athletes in Tennessee: Are Restrictions on Specific Types of Businesses Warranted?

“The Times, They-Are-A-Changin’” – quickly across the Tennessee high school NIL landscape.  This past December (2022), Tennessee became the 22nd state to permit high school Name, Image & Likeness (“NIL”), in addition to the District of Columbia.  The Tennessee Secondary School Athletic Association (“TSSAA”) decided to allow high school NIL only under a number of specific rules and restrictions.

Despite those rules and restrictions (which are numerous, detailed and specific), the TSSAA does not prohibit high school athletes from NIL activities with any type of business. The TSSAA states in the FAQ section of its website:

9. Are there restrictions as to the types of businesses athletes can sign NIL agreements with?

Not at this time.

Name, Image and Likeness and the TSSAA Amateur Rule | TSSAA

Instead, the TSSAA should consider promulgating rules prohibiting high school athletes from NIL activities with the following specific types of businesses:

  1. Gambling;
  2. Tobacco;
  3. Vaping-related businesses (thank you Tess and Jeanette!);
  4. Alcohol-focused businesses (this rule would not prohibit restaurants like my favorite “Aubrey’s” in Knoxville (which includes a Bar) from NIL activities with high school Collectives and athletes, but would exclude a “Bar,” “Pub” or “Brewery” from reaching NIL endorsement deals with high school athletes);
  5. CBD-related products; and
  6. Adult entertainment, and related brands, websites and/or activities.

If an athlete violates these rules — directly or indirectly — the athlete should immediately forfeit all NIL monies received from that restricted business to the TSSAA or a fund set up to provide NIL deals to high school athletes from underserved communities.

Most of my thoughts above are taken from the language included in Tennessee Code Annotated § 49-7-2802, which is the Tennessee law on collegiate NIL, made effective on July 1, 2021.  Section 49-7-2802 – Compensation for use of intercollegiate athlete’s name, image, or likeness, Tenn. Code § 49-7-2802 | Casetext Search + Citator See subsection (g)(3), specifically.  The Tennessee General Assembly has not passed a high school NIL law as of the date of this article.  It is unclear if one will be passed in the future.

I respectfully submit these things should be specifically prohibited, not on religious or political grounds, but on straightforward notions of age-appropriateness, preservation and protection of young people before they reach the age of majority (18 years old).  Kids younger than 18 years old cannot legally partake in these activities, so they should not promote them.  

High school NIL is a new industry which brings unique and rare opportunities to high school athletes, with a number of companies eager and motivated to market to high school-age kids – and their parents, teachers, coaches, social media and the larger public.  And what better way than organic high school NIL social media advertising to market and broadcast your brand?!  A lot of vendors and businesses throughout the East Tennessee region (and beyond) have already awoken to the new reality that high school NIL advertising (like college NIL advertising) allows brands to authentically reach a large segment of people who actually pay attention to the message – largely because of the messenger and the way the message is delivered.  We are also seeing noticeable PR bumps for businesses and brands who support NIL and/or endorse high school athletes, which makes sense because parents, teachers and coaches are very excited about the biggest thing to impact high school athletics – and their kids – since Title IX.

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