DV Journal

High school athletes in Pennsylvania can now make their athletic prowess pay. The Pennsylvania Interscholastic Athletic Association’s Board of Directors has approved a measure permitting student-athletes to profit from their name, likeness, and image via endorsements.

The regulations are similar to those the NCAA established for college athletes in the wake of a unanimous decision by the U.S. Supreme Court in June of last year (National Collegiate Athletic Association v. Alston) and to those now in place for high-school athletes in 22 states, including New York and New Jersey.

Mark Byers, the PIAA’s chief operating officer, says the organization has been watching how those states have implemented their own NIL policies.

“We’ve been monitoring different states involved,” he said. “New York and New Jersey have instituted policies for name, image, and likeness; the sky has not fallen.”

Byers says that adopting NIL protocols for high-school athletes was, in his words, “a necessary step” in light of the NCAA’s action.

“We worked with the major institutions in Pennsylvania,” he said, “Temple, Penn State, and Pitt, and relied a little bit on their assistance in trying to craft this because we know for some of the states it’s a hindrance not to have high-school athletes benefit from NIL.”

Student-athletes who enter into a NIL agreement must notify their principal and athletic director within 72 hours of doing so. A school or its representatives (coaches, administrators, booster club, etc.) is barred from arranging or paying for a student-athlete’s NIL agreement.

And there are restrictions on what products or services student-athletes are permitted to endorse. The prohibited list includes casinos and gambling services, alcohol and tobacco products (including electronic cigarettes), prescription medications, opioids and other controlled substances, weapons and ammunition, and any form of adult entertainment.

In addition, student-athletes may not appear in an advertisement wearing their school or team uniform and cannot wear the logo of an endorsement partner during team activities; i.e., a high-school golfer cannot wear the logo of a NIL endorsement partner on their shirt or cap.

Doylestown attorney Dave Baun is a member of the PIAA Board of Directors and represents the parents of high-school student-athletes.

Baun was not present for the third and final vote on NIL on December 7 but previously voted in favor of the measure.

While not speaking for the PIAA, Baun says passing a NIL measure was the right decision.

“I think the PIAA tries to be forward-looking and forward-thinking,” he said. “We think this is coming and we wanted to get ahead of it and sort of set some guidelines. Because once you get to the point where you don’t have guidelines and someone does take action, and you disagree with it, now you’re into an argument over it. It’s a little late then to backtrack and try to make those regulations retroactive. So, I think it was the right move, and it was done at the right time.”

Baun thinks the regulations strike an appropriate balance. “It allows for the student-athlete to receive the benefits of his or her name, image, and likeness,” he said, “but it places reasonable guidelines on it. And they provide reasonable safeguards for the schools, and the PIAA.

“The student-athlete is essentially selling his or her personal asset but he can’t sell the rights to his high school’s.”

While some would contend that NIL agreements are a step away from the model of high-school sports as part of the educational process, Byers believes they are a product of today’s technology.

“I think it is a sign of the technology that’s at the hands of kids and the impressions that they’re making,” he said. “The irony is that benefitting from NIL often has very little to do with how good an athlete may be but it’s how much of an on-line presence they have that becomes attractive to different organizations trying to align with them.”

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Recent complaints from some Pennsylvania basketball coaches about unfair competition from private and charter schools make some legitimate points. Public schools can only take students from within their geographical districts, but private and charter schools can take students from anywhere.

Some coaches are calling for separate playoffs for district schools and other schools in the Pennsylvania Interscholastic Athletic Association (PIAA). “It would help if schools with boundaries don’t have to play ones that don’t have boundaries,” said Aliquippa coach Nick Lackovich.

But pushing kids from private and charter schools into separate playoffs isn’t the answer. Rather than reducing opportunities for some kids, coaches and other leaders should try to expand opportunities for all.

What do I mean? The root cause of the problem the coaches are citing is that Pennsylvania—like other states—assigns children to schools based on where they live. This probably made sense in the 1800s when cars and phones didn’t even exist. It would have been difficult to give children a variety of educational options.

In 2022, it makes no sense at all.

The answer is to fund students and let families choose the education that works for them. That would result in a tremendous flourishing of opportunities for all students. Maybe some schools would recruit athletes and become basketball, football, or track powerhouses. But other schools would focus on art or music and attract kids who excel in those areas. Some schools would emphasize vocational training and offer unique programs for their students. There would probably even be hybrid schools where students learn at school some days and at home other days.

This isn’t a pipe dream. In Pennsylvania, we already have tax credit scholarships and charter schools that allow some families to choose a school beyond the one they were assigned to. Other states offer vouchers that can be used at private schools. Education scholarship accounts (ESAs), which are already operational in six states and approved in five more, are the most flexible option. With ESAs, funds are deposited in restricted-use accounts that parents can spend on approved education-related expenses.

Funding students instead of a system would alleviate the competitive problems the coaches are complaining about. But more importantly, it would allow each child to attend the educational environment that suits them best. Imagine if schools were competing to be the best at academics, art, theater, vocational training, or speech and debate the way they currently compete in athletics. It would open a world of new possibilities for children.

The coaches who are complaining about the current system attempted to compare it to other levels of basketball. According to New Castle coach Ralph Blundo, “NBA teams don’t play Division I college teams. Division I teams that have scholarships don’t play Division III teams for championships because the circumstances are different. The ability to obtain players is different. I get all that. But you have to acknowledge and handle it because it hurts kids.”

That analogy doesn’t hold up. People aren’t assigned to NBA teams or to college based on where they live. They choose where to go based on who accepts them and what they think is the best fit. The coaches aren’t calling for college placement to be based on where people live to make an even playing field. But they fail to realize that residential assignment makes no more sense in K-12 than it would for college.

These coaches seem to think separating the private and charter kids into their own playoffs will ensure fairness. But there will always be some schools—and some children—who have more advantages than others. Schools that spend more on sports are likely to outperform other schools. Similarly, schools with more kids who can afford outside coaching or leagues are likely to outperform other schools. The answer isn’t pushing some kids out of the way. The answer is to change the system so each child can pursue his or her dreams.

Funding school systems or buildings is so 1800s. It’s 2022. It’s time to fund students and let all kids pursue the education that works best for them.

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