Intellectual Property Blog

What Kentucky High School Athletes Need to Know About NIL Rules

In 2023, Kentucky became the 31^st state to permit the monetization of an athlete’s name, image, and likeness for high school athletes. The Kentucky High School Athletic Association (KHSAA) amended two of its Bylaws to include new sections regarding students’ Name, Image, and Likeness (“NIL”) benefits, specifically allowing high school athletes to earn money from “product or business endorsements” associated with their NIL and to be paid for their work at camps or clinics. The two bylaws at issue – Bylaw 10 and Bylaw 16 – provide a comprehensive overview of the KHSAA NIL benefit program and the restrictions on compensation for high school athletes.

An Open Door to Compensation

Bylaw 10 provides that high school athletes can receive compensation for the following four activities: (1) working at camps and clinics; (2) product or business endorsements; (3) for, generally, activities at a prevailing market rate for activity using the students’ NIL; and (4) social media activities. However, the rule prohibits a student-athlete from receiving compensation “directly related to specific ability, performance, or contest results (actual or speculative).” For all these NIL activities, the compensation rate must be reasonable, with the “prevailing market rate” for similar activities used as the guidepost for pay structures.

Bylaw 10 provides specific – and common – restrictions on a student-athletes use of “School intellectual property”; meaning, member schools of KHSAA are prohibited from granting a student athlete the right to use the school’s trademarks, school uniforms, logos, copyrights, etc., in connection with compensation for NIL activities. Further, student-athletes are prohibited from using “Association intellectual property” in their NIL activities, defined as “the logos (past and present, to include official and unofficial logos whether officially filed or not) of the KHSAA or any of its events; including past audio, video, and still images.”

Curbing Recruitment Abuses

Bylaw 16 provides further restrictions, not on the individual athletes, but on the schools’ recruitment tactics. In hopes to combat the growing issues of recruitment of athletes based on NIL opportunities, Bylaw 15 states “an individual with a connection to a member school shall not give or promise a prospective or currently enrolled student-athlete compensation for the use of the name, image, or likeness of to recruit or induce the athlete to enroll at any member school,” and, again, that no member school can give any promise of compensation for the use of an athlete’s NIL.

A New Frontier

These bylaw amendments suggest the shift – or perhaps the “keeping up with the Joneses mentality – in Kentucky towards the expansion of NIL compensation for young athletes. However, this shift does not come without its risks. Practically, the risks for athletes found in violation of Bylaw 10 include penalties such as a period of ineligibility and other disciplinary action as mandated by the KHSAA. More broadly, some commenters fear the expansion of BIL benefits to high school athletes increases the risk of financial exploitation, the potential for inequality among different sports, and noncompliance with state laws and regulations.

If you’d like assistance with protecting your student athlete’s NIL rights, reach out to the experts at McBrayer

Grace Garner is a law clerk with McBrayer's Louisville office and a recent graduate of the University of Louisville Louis D. Brandeis School of Law.

Services may be performed by others. This article does not constitute legal advice.