Minnesota, North Dakota High School Athletic Associations Pass NIL Policies

Minnesota and North Dakota high school athletic associations have each passed name, image, and likeness (NIL) policies to permit high school athletes to profit off their NIL. The Minnesota State High School League (MSHSL) Board of Directors and the North Dakota High School Activities Association (NDHSAA) both passed their NIL policies on June 7, 2022.

Minnesota High School NIL Policy

The MSHSL NIL policy lists several key guidelines:

• The compensation is not contingent on specific athletic performance or achievement (e.g., financial incentives based on points scored).

• The compensation is not provided as an inducement to attend a particular school (“recruiting”) or to remain enrolled at a particular school.

• The compensation is commensurate with market value.

• The compensation is not provided by the school or an agent of the school (e.g., booster club, foundation, etc.).

• NIL activities must not interfere with a student-athlete’s academic obligations.

• A student-athlete must not miss athletic practice, competition, travel, or other team obligations in order to participate in NIL opportunities.

The policy also lists several permissible NIL activities, such as teaching/instructing/coaching, advertisements, and autographs, provided that there is no school involvement and no MSHSL or school logos, marks, mascots, or apparel are used in the NIL activities.

In addition, the policy prohibits several NIL activities, such as the following:

• A student-athlete is not permitted to sell items provided by the school until that student‑athlete has exhausted their high school eligibility for that sport.

• Use of MSHSL or school marks and logos is prohibited for any NIL activity.

• A student may not reference their involvement in high school activities at their school when promoting a NIL activity.

• Students are not permitted to promote certain activities in vice industries, including but not limited to: alcohol; tobacco, cannabis, or related products; gambling; and weapons.

The policy puts the responsibility on the student-athlete to comply with MSHSL bylaws and policies, school policies, and NCAA rules and regulations. “It is the student’s responsibility to know and understand any NCAA requirements before engaging in covered activities,” the policy states. “In order to protect eligibility, students are encouraged to closely review [MSHSL] rules and policies prior to engaging [in any NIL activities].”

Bayliss Flynn, a soccer player at Edina High School in Minnesota, recently became the first high school student-athlete to sign a NIL deal in Minnesota.

North Dakota High School NIL Policy

The NDHSAA NIL policy is reported to be similar to the policy adopted by the MSHSL.

“An athlete can’t use school uniforms, logos or high school league logos in marketing or promotion. Booster clubs also can’t be involved with NIL or compensation can’t be used for recruiting an athlete to a certain school. Athletes also can’t be compensated for performance,” said the NDHSAA spokesperson.

“I think the two biggest pieces are not having an affiliation with the school and not being influenced, or having an effect, where you attend school,” said NDHSAA Executive Director Matthew Fetsch, per The Forum.

Fetsch said the NDHSAA had been working on drafts for its policy since last September and inquired with North Dakota State and the University of North Dakota about their NIL policies. Fetsch also said the NDHSAA has yet to deal with a NIL inquiry from schools, students, or families of students, but the Board of Directors wanted to have the policy in place if that time comes.

Minnesota and North Dakota join several other state high school athletic associations—Alaska, California, Colorado, Connecticut, Kansas, Louisiana, Nebraska, New Jersey, New York, and Utah—that permit high school athletes to monetize off their NIL while maintaining their amateur status.

Ryan Whelpley is an Associate at Morse in Waltham, Massachusetts, where he is a member of the firm’s Corporate Practice Group and focuses on venture capital financings, M&A transactions, and general corporate work for start-up and emerging growth companies. He is a graduate of Albany Law School (2019) and Union College (2016). At Union, Ryan was a member and three-year captain of the Men’s Basketball Team. You can connect with him via Twitter (@Whelpley_Law) and LinkedIn.