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On November 7, 2024, the North Carolina State Board of Education (“SBE”) proposed a new temporary rule that permits public school athletes to capitalize on their name, image, and likeness (“NIL”).[1] The new proposal removes language prohibiting NIL use and clarifies which immediate family members can get compensation from an athlete’s NIL deal.[2] It further expands NIL deals to cover “any other commercial activities that are intended to promote a product or service offered by, increase the profits of, or otherwise generate financial benefits for a party to the NIL agreement from the use of the student’s name, image, and likeness.”[3] SBE will take public comments from November 15 to December 10, and final approval is expected on January 9, 2025.[4] Subsequently, the new temporary rule will be effective by February 13.[5]
Rolanda Brandon, on behalf of F.B., a minor, v. North Carolina State Board of Education actuated this breakthrough in public interscholastic athletics. Rolanda Brandon, on behalf of her son, Grimsley High School quarterback Faizon Brandon (“F.B.”), alleged in the civil action that SBE exceeded its authority under Senate Bill 452 by imposing a full ban on NIL agreements.[6] Brandon also highlighted the unfair advantage that private school athletes have because the NIL restriction only applies to public schools.[7]
As a Tennessee commit and the number one recruit in the class of 2026, F.B. was offered an opportunity by “a prominent national trading card company” to provide signed memorabilia in exchange for a substantial sum of money.[8] However, he was “entirely precluded” from licensing the use of his NIL due to the Board’s policy.[9] As a result, the complaint stated that F.B. and his family suffered irreparable financial harm from missing “life-changing opportunities.”[10]
However, F.B.’s private school counterparts did not face the same harm at the time of the complaint. The North Carolina Independent Schools Athletic Association (“NCISAA”) enacted a policy that allowed North Carolina students attending private schools to engage in NIL activities.[11] For example, fellow Tennessee recruit and No. 4 overall prospect in the 2025 ESPN 300, David Sanders, profited from selling his own merchandise online.[12] “We recognize that the sports world is changing and will continue to assess best practices for our schools,” said Homar Ramirez, the executive director of NCISAA, in a press release.[13]
On October 11, 2024, the Wake County Superior Court granted Brandon’s motion for preliminary injunction, holding that Senate Bill 452 does not give the State Board “unfettered discretion” to decide whether public high school athletes should be allowed to license the use of their NIL at all.[14] Instead, as Judge Graham Shirley clarified, the bill directs the Board to implement rules as guardrails related to that use.[15] Therefore, SBE was not authorized to “altogether prohibit” students’ use of their NIL.[16] The Court further agreed that the ban “create[d] a disparity between interscholastic athletes who attend public schools and those who attend private schools in North Carolina.”[17] Accordingly, the balancing of the equities favored a new SBE policy permitting NIL use.[18]
“I feel like this is important because we are able to benefit off of what we worked for. This will help many other kids and not just myself,” said F.B. to CBS Sports.[19] It is undeniable that NIL agreements provide high school athletes the opportunity to support themselves and their families.[20] A five-star 2023 recruit’s NIL deal paid him $350,000 upfront and may pay him more than $8 million by the end of his junior year in college.[21] Following the legalization of NIL for high school athletes, Jared Worley, the athletic director at Seaforth High School, shared he feels “it’s an opportunity for students to do whatever’s best for them.”[22]
Some people expressed concerns about broadening NIL eligibility to high school athletes. It is argued that high school and college athletics serve different purposes. Several legal scholars[23] believe that high school sports should ideally be viewed as a more “educationally focused endeavor” and fear that NIL-related activity may hinder “fundamental educational credentials” for high school student-athletes.[24] Additionally, there are concerns about heightened administrative burdens on high school athletic programs due to increased competitiveness from NIL incentives. High schools are more inadequately staffed compared to NCAA schools, which are traditionally extremely regulated.[25] Therefore, any complicated or sophisticated NIL regulation at the high school level could amplify burdens for the institutions and related athletic associations that supervise them.[26] Furthermore, high school students may succumb to the pressures of maximizing NIL deals because of the tremendous potential of earnings.[27] Some coaches fear that students may be incentivized to “chase superficial validation and individual accolades at the expense of team accomplishments.”[28] Thirty-eight states, and now soon North Carolina, permit high school athletes to engage in NIL activities.[29] Accordingly, the effects of NIL use will likely vary across states and on a “school-by-school basis.”[30] However, it is uncertain what the actual effects may be, as these are just speculations. “We’ll have to wait and see,” said Worley.[31]
[1] Proposed Temporary Rule for Name Image and Likeness, 16 NCAC 06E .0211, Public Schools of North Carolina, Department of Public Instruction, https://perma.cc/PM85-E7UG
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Asheebo Rojas, Court order legalizes high school NIL in NC, North State Journal,
https://nsjonline.com/article/2024/10/court-order-legalizes-high-school-nil-in-nc/ (Oct. 26, 2024)
[7] See generally, Amend. Compl., Rolanda Brandon, on behalf of F.B., a minor, v. North Carolina State Board of Education, et al., Case No. 24CV026975-910, North Carolina Superior Court, Wake County https://trellis.law/doc/219089005/amended-pleading (Last visited: Nov. 29, 2024).
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] ESPN News Services, Mom of 2026 QB recruit suing North Carolina over NIL restrictions, ESPN, https://www.espn.com/college-sports/recruiting/football/story/_/id/41005492/mom-2026-qb-recruit-suing-north-carolina-nil-restrictions (Aug. 26, 2024).
[13] Langston Wertz Jr., NC private high school athletes to profit from NIL starting this fall, The Charlotte Observer, https://www.charlotteobserver.com/sports/high-school/article284866706.html (Feb. 2, 2024).
[14] See generally, Order Granting Preliminary Injunction, Rolanda Brandon, on behalf of F.B., a minor, v. North Carolina State Board of Education, et al., Case No. 24CV026975-910, Wake County, North Carolina Superior Court, https://www.cbs17.com/wp-content/uploads/sites/29/2024/10/NIL-pdf.pdf (Filed on October 14, 2024).
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Anna Adams, Top recruit Faizon Brandon sues North Carolina State Board of Education over ban of endorsement deals, CBS Sports, https://www.cbssports.com/college-football/news/top-recruit-faizon-brandon-sues-north-carolina-state-board-of-education-over-ban-of-endorsement-deals/ (Aug. 26, 2024).
[20] Francesca Casalino, Call to the Bullpen: Saving High School Student Athlete Name, Image, and Likeness Rights, 29 Jeffrey S. Moorad Sports Law Journal 263, 273 (2022).
[21] Stewart Mandel, Five-star recruit in class of 2023 signs agreement with collective that could pay him more than $8 million, The New York Times, https://www.nytimes.com/athletic/3178558/2022/03/11/five-star-recruit-in-class-of-2023-signs-agreement-with-collective-that-could-pay-him-more-than-8-million/?redirected=1
[22] Rojas, supra note 6.
[23] See, e.g., Deborah N. Archer, Failing Students or Failing Schools?: Holding States Accountable for the High School Dropout Crisis, 12 Lewis & Clark L. Rev. 1253, 1259 (2008) (observing that “a high school diploma [is] a key component of [a basic] educational experience”); Michael A. Rebell, The Right to Comprehensive Educational Opportunity, 47 Harv. C.R.-C.L. L. Rev. 47, 55 (2012) (discussing the purpose of a K-12 education).
[24] Adam Epstein, et al., An Evolving Landscape: Name, Image, and Likeness Rights in High School Athletics, 77 Vand. L. Rev. 845, 874 (2024).
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Anna Adams, Top recruit Faizon Brandon sues North Carolina State Board of Education over ban of endorsement deals, CBS Sports, https://www.cbssports.com/college-football/news/top-recruit-faizon-brandon-sues-north-carolina-state-board-of-education-over-ban-of-endorsement-deals/ (Aug. 26, 2024).
[30] Rojas, supra note 6.
[31] Id.