In June 2021, the Supreme Court decided NCAA v. Alston which spurred the NCAA to change its rules and allow college athletes to profit from their name, image, and likeness (NIL). Since then, NIL deals have become commonplace in both college and high school sports with top athletes raking in millions of dollars through partnerships. Currently, there is no federal legislation governing NIL compensation, leaving room for each state to set its rules independently. While a vast majority of states permit all high school athletes to receive NIL payments, North Carolina has a unique rule (at least until very recently): private school athletes could be compensated through NIL deals while public school athletes could not.
This difference in treatment between public and private school athletes stemmed from a July 2024 policy enacted by the North Carolina State Board of Education, which oversees the North Carolina High School Athletic Association (NCHSAA). Since only public schools are members of the NCHSAA, the rule, which prohibited NCHSAA athletes from signing NIL deals only applied to public school athletes. The State Board implemented this policy out of fear that schools in more affluent areas could take advantage of NIL deals to recruit top athletes to their programs, compromising the fairness of high school sports. While the Board’s fear is understandable, its rule did not solve this issue since it did nothing to prevent private schools from using their greater resources to recruit athletes.
In the wake of this ban, one of the best public high school football players in the state, five-star recruit Faizon Brandon, through his mother, filed suit asking the court to issue a preliminary and permanent injunction that strikes down the Board’s ban. According to the complaint, Brandon was presented with the opportunity to partner with a national trading card company. While he accepted the offer, the deal was jeopardized by the State Board’s rule. In asking for the injunction, Brandon put forward two main arguments: (1) Senate Bill 452, which granted the State Board power to regulate athletes’ use of NIL, does not give them the power to outright prohibit NIL, and (2) the rule is not based on a reasoned judgment and is therefore arbitrary, capricious, and consequently invalid.
Faizon’s first argument relates to the wording of Bill 452, which grants the State Board the power to adopt “rules related to use of a student’s name, image, and likeness.” Faizon argues that this phrasing “expressly contemplates that public high school athletes will use their NIL for their own commercial benefit,” thus limiting the Board’s power and preventing them from instituting a ban. Arguments based on the textual interpretation of a statute are never straightforward. A judge could easily interpret the statute either way and will likely construe it to create, what is in their view, the most just outcome. Given the inequity of the ban, this was a very smart strategic decision by Faizon as it will give the judge leeway in their decision.
Faizon’s second argument, that the rule is unreasonable and invalid, seems true when examining its effects. As already mentioned, the rule does not solve the problem of unfairness in high school sports which the Board meant to address. Rather, it simply creates more unfairness in putting private schools at a huge advantage over public schools by giving them a monopoly on NIL spending. Additionally, donors to public schools may decrease the amount of support they provide as a result of the rule. If top athletes stop committing to public school athletic programs, they may become less competitive. In the context of college sports, a 2017 study by the Griswold Center for Economic Policy Studies at Princeton University found that “for males, donations for both general purposes and for the athletic program increase with the success of the alumnus’s former team.” Given this, it is possible that decreasing the competitiveness of public school football programs in the state will lower alumni donations, which could negatively impact public school students at large. Finally, the rule draws an arbitrary distinction between students based on what type of school they attend that is simply unfair. The rule entirely prohibits some athletes from profiting from their NIL while allowing a similarly situated group of students to monetize their NIL in any way they please. It is ridiculous to allow this inequality to continue when the statute fails to solve the main issue the Board aimed to address.
In light of these arguments, and the clear unfairness of the rule, it is unsurprising that Judge Graham Shirley granted a preliminary injunction in favor of Brandon on October 1, 2024. For now, this ruling will put an end to the injustice created by the Board’s ban on NIL for public school athletes and will allow athletes at all levels in the state to rightfully profit from their NIL. It creates uniformity in the treatment of athletes and follows the path of the vast majority of US States. It runs counter to the tenets of our capitalist society to deny only some athletes the opportunity to profit from their skills. Thankfully, this ruling solves this problem and creates an equal playing field for all athletes in North Carolina to earn money from their NIL.
