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On October 1^st, NC Family let you know that the public comment period began for the State Board of Education’s proposed policy regarding name, image, and likeness (NIL) for high school athletes in North Carolina. Although that comment process remains open‚—including a public hearing on November 8—a Wake County judge has superseded the normal policymaking process and issued a judicial decision that immediately puts the policy into effect.

Recent Historical Context

From 2019-2021, there was a history of individual state- and conference-led efforts to legalize the use of NIL for college athletes. With this momentum, and in the wake of the Supreme Court decision in Alston v NCAA, the NCAA lifted its prohibition on NIL for college athletes beginning July 1, 2021. This naturally led to questions about NIL for high school athletes.

In May of 2023, The North Carolina High School Athletics Association (NCHSAA) approved procedures allowing NIL to begin July 2023. However, the North Carolina General Assembly quickly responded, and with the passage of Senate Bill 452—DOI & Ins Law Amd/Revise HS Athletics in September 2023, policies regarding NIL for high school students at public schools in the state were required to come from the State Board of Education. In early February 2024, the North Carolina Independent Schools Athletic Association (NCISAA) publicly confirmed its approval of an NIL policy for private school students to take effect for the 2024-25 Academic Year.

SB 452 required the State Board to issue temporary rules for the 2024-25 Academic Year and permanent rules for the 2025-26 Academic Year. Due to the limited time to draft, seek feedback, and pass appropriate regulations, the State Board voted in June to prohibit NIL for the 2024-25 Academic Year. The State Board then voted in September to advance proposed permanent rules for public comment that would  allow NIL for the 2025-26 Academic Year. This meant that for the 2024-25 Academic Year, and only this year, public school students in North Carolina would be prohibited from accepting NIL deals while private school students could.

Judicial Time Machine

In response to the State Board’s temporary prohibition of NIL during 2024-25, the family of Faizon Brandon filed for an injunction. Brandon, a star quarterback at Greensboro’s Grimsley High School, is considered by some to be the number one rated football recruit in the nation and has NIL offers for this year.

The case came before Wake County Superior Court Judge Graham Shirley, who ruled in favor of the Brandon family. Judge Shirley signed a written order on October 14, placing an injunction on the temporary NIL prohibition and placing the proposed permanent rules into immediate effect—before the scheduled public comment period has run its course.

According to his ruling, the judge based his decision largely on two points. First, the language of SB 452 implies that the General Assembly intended for students to be allowed access to NIL deals, so the State Board exceeded its authority by prohibiting it. Senator Amy Galey of Alamance and Randolph counties wrote a letter in September that agrees with this premise. She says, “The General Assembly passed Senate Bill 452 last year with a clear mandate that the SBE would regulate athletes’ ‘use’ of their NIL, not prohibit it altogether.”

Second, the judge argues that his decision preserves the status quo. This point is more debatable for at least two reasons. First, he says that public school athletes were not barred from NIL prior to the temporary prohibition. But that was not the consensus. Nick Stevens is the managing editor of HighSchoolOT, a sports news branch of WRAL.com that focuses on high school sports in North Carolina. In an article in February, he said that, until the state board addresses NIL, student-athletes “are still prohibited from taking part in NIL activities.” Since the prohibition wasn’t passed until June, that means that Stevens thought the status quo was a prohibition. Other news articles at that time (responding to the new NCISAA rules) made similar statements.

Furthermore, if he is correct that the status quo prior to the temporary rule was not a prohibition, then Judge Shirley could have limited his injunction to striking down the temporary rule. According to his view, that would lift the prohibition. Instead, he implemented a “judicial time machine” and applied the anticipated state of affairs for July 2025—the proposed permanent rules—to today.

Today and Looking Ahead

In his ruling, Judge Shirley didn’t take it upon himself to draft entirely new legislation from the bench but, rather, adopted the State Board’s proposed rules. As a result, the proposed rules currently open to public comment are also in effect, making this a somewhat unique circumstance. Based on the judge’s ruling and Sen. Galey’s letter, it seems improbable that the State Board will prohibit NIL for high school students. If parents and families want a prohibition of high school NIL, that would seem to require new action by the North Carolina General Assembly.

As a high-level overview, here is a comparison of the State Board’s proposed (and now current) rules, the NCHSAA’s previous procedures, and the NCISAA policy.

Whether one likes it or not, high school NIL is part of North Carolina’s new reality. Therefore, it is all the more important that parents and families review the proposed—and now current—rules and policies to ensure we have the best protections in place to protect the nature, value, and quality of high school sports.

For more information on how to provide feedback on the NIL policies for high school athletes, see our earlier story.