With college athletes now enjoying opportunities to profit from their name, image and likeness, it was only a matter of time before high school athletes sought the same chance. In a lawsuit filed in Miami on Monday, Sal Stewart, a third baseman at Westminster Christian School in Florida, and Gilbert Frierson, a safety/linebacker at the University of Miami, are challenging a Florida High School Athletic Association (FHSAA) bylaw that prohibits high school athletes from “capitalizing on athletic fame.” They also contest a restriction in Florida’s NIL statute that disallows NIL deals which last beyond a player competing in college.
Both Stewart, a senior who is committed to play at Vanderbilt, and Frierson were recently offered deals by health care services provider LifeWallet. Had Stewart signed, the bylaw would have deemed him ineligible to play for his high school, whose alumni include former big leaguers Alex Rodriguez and Doug Mientkiewicz. Frierson, who has one year of NCAA eligibility remaining, signed a one-year deal, reportedly for $50,000. However, due to the statute’s temporal restriction, Frierson’s deal can’t extend beyond his collegiate career.
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The bylaw is depicted as unlawfully interfering with Article I, Section 2 of the Florida Constitution, which guarantees the freedom to contract through an inherent right to “acquire, possess, and protect property.” As the players see it, the state athletic association’s restriction violates this freedom and should be declared unconstitutional.
The players also contend that the National Federation of State High School Associations (NFHS) and the NCAA have acted illegally. The NFHS is accused of conspiring with FHSAA in the bylaw’s adoption. In that vein, the bylaw is portrayed as violating Florida antitrust law. It arguably price fixes the value of high school athletes’ NIL to $0 and constitutes a group boycott of potential endorsement services to Florida businesses. The players further maintain there are less restrictive arrangements that could meet FHSAA’s stated objectives. FHSAA bylaws define an “amateur” as “one who engages in athletic competition solely for the physical, mental, social, and pleasure benefits derived from the activity.”
As to the NCAA, it is firstly accused of wrongfully denying NIL opportunities prior to July 2021. This legal argument has also been raised in House v. NCAA, wherein several college athletes contend the NCAA and its members violated federal antitrust law by denying NIL. Stewart and Frierson also depict the NCAA as continuing to interfere with the freedom of contract through its interim NIL policy. The policy instructs that colleges should follow applicable state NIL statutes or, if none exists, adopt reasonable NIL restrictions consistent with amateurism. Florida’s statute limits NIL contracts to durations not exceeding college stays, which the players claim is unjust.
The players seek class certification on behalf of all Florida high school athletes who have been denied by the bylaw. Stewart and Frierson also aim for certification of a second class on behalf of all Florida college players. This second class would include college athletes who were either barred from signing an NIL deal prior to July 1, 2021, (when Florida’s NIL statute went into effect and when the NCAA adopted the interim policy) or who have lost out on NIL earnings because of the temporal restriction.
The players’ complaint is brought by attorney John Ruiz, who has an extensive career in class action litigation and has been counsel in cases that have led to billions of dollars in settlements. Ruiz, a Miami grad, is also leading a stadium initiative for his alma mater and is the founder of MSP recovery, a company behind LifeWallet.
While much of the discussion around NIL has focused on college athletes, there are NIL opportunities for young athletes even before they reach the NCAA level. High school basketball star Mikey Williams, who has more than 3.5 million Instagram followers and is already considered an elite prospect for the 2024 NBA draft, recently signed with global agency Excel to represent him in NIL opportunities. The 17-year-old San Diego native attends high school in North Carolina, but he isn’t subject to North Carolina’s high school association’s rules because he plays for a private academy that does not belong to the association.
High school athletes in some states have already inked NIL deals, while others have publicly highlighted limitations in their home states. In August, quarterback prospect Quinn Ewers left his Texas high school to enroll early in Ohio State. Ewers had received an NIL offer and said the decision came after the Texas University Interscholastic League told him he couldn’t profit off NIL while in high school. Ewers later announced he was transferring to the Texas Longhorns.
The three defendants will have opportunities to answer the Stewart/Frierson complaint, deny wrongdoing and move for the complaint’s dismissal. Expect FHSAA’s attorneys to insist that its bylaw is lawful and reasonable. While California and New York are among a handful of states to permit high school players to sign NIL deals, state athletic associations are normally accorded broad discretion in determining appropriate rules of eligibility. A state athletic association could plausibly determine that college and high school sports involve dissimilar policy considerations given differences in athletes’ ages and educational interests. A total ban on NIL also doesn’t discriminate by race, sex or other protected classification—–all athletes are barred.
The NFHS, meanwhile, can argue it is not involved with state athletic associations’ decision-making on NIL, and therefore isn’t a proper defendant. The NFHS’ primary functions include the drafting of playing rules for high school sports, the promotion of scholastic sports participation and the offering of educational courses. While the association and its executives have advocated viewpoints on NIL, each state promulgates its own eligibility rules.
Similarly, the NCAA is not responsible for Florida’s NIL statute. In fact, Florida’s NIL statute was hostile to the NCAA. It played an instrumental role in the NCAA unsuccessfully pleading with Congress to pass a federal NIL bill by June 30, 2021. When the clock ran out, the NCAA was left with the unenviable choice of capitulating or seeking restraining orders in each NIL state.
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