When athletes sue to obtain the right to enter into NIL contracts, the issue is usually privacy law, which prohibits the commercial use of another person’s identity without their consent, or antitrust law, which challenges the idea that competing companies have colluded to unlawfully prevent NIL.
A new case in North Carolina takes a different tactic: A state agency is accused of not having the legal authority to prohibit NIL deals for public high school athletes.
Last Friday, the mother of five-star University of Tennessee football recruit Faizon Brandon — a rising junior at Grimsley High School in North Carolina who is considered one of the best quarterbacks in his class — sued the state Board of Education and Department of Public Instruction, arguing that they misinterpreted the legislature’s authorization.
Rolanda Brandon seeks a declaratory judgment that a state policy prohibiting NIL stores for public high school students is invalid and seeks an injunction to prevent the state from enforcing the policy.
The North Carolina Board of Education has reportedly failed to comply with Senate Bill 452, which instructs the board to “regulate requirements for student amateur status, including rules related to the use of a student’s name, image, and likeness.”
Last month, the Board of Education passed ATHL-008, which prohibits public school students from signing NIL contracts during the 2024-25 school year. The ban includes NIL contracts related to public appearances, commercials, autograph signings, sports camps and clinics, the sale of non-fungible tokens, product or service promotions, promotional activities, and social media advertising.
Brandon sees it this way: The legislature would not have chosen the word “use” if it had expected that the Board of Education would prohibit any use. The legislature allegedly chose “use” because it believed that the executive agency would regulate the activity; if the legislature wanted to see this activity banned, it would have chosen a word like “ban” or “prohibit.” By banning NIL transactions, the agency allegedly acted outside its jurisdiction.
Brandon, who is represented by attorneys Michael A. Ingersoll and Matthew F. Tilley, claims a preliminary injunction is warranted because the policy “completely prevents” her son from “entering into a formal licensing and endorsement agreement” with a NIL sponsor and he will “never be able to make up for lost time” by entering into a contract with the sponsor. A preliminary injunction reflects how the ticking clock of high school sports could render the lawsuit moot. While litigation could take many months or years, Faizon intends to graduate in December 2025.
Brandon’s affidavit provides insight into how her son will be harmed by a NIL ban. She says that in April, a “well-known, national trading card company” offered him a “substantial” amount of money that would provide him with “financial security for years.” The company, Brandon says, “has already indicated once that it may have to withdraw or reduce the offer” if her son “cannot accept his offer and sign an agreement with (the company) this year.”
Fanatics is not named in the court filing, but has signed endorsement deals with prominent high school athletes over the past year.
Brandon adds that “other potential business partners have decided not to offer their son endorsement deals due to state policy.”
The NIL ban could cost Faizon Brandon over $1 million, his mother says, considering what the unnamed potential sponsor has paid high school athletes in states where they can sign NIL contracts. According to a recent count, 38 states and the District of Columbia allow high school athletes to sign NIL contracts. Rolanda Brandon also points out that high school athletes at private schools in North Carolina “have signed endorsement contracts that allow them to receive compensation by licensing the use of their NIL.”
Brandon describes her repeated attempts to persuade agency officials to reconsider their position as being promptly rebuffed by uncomprehending bureaucrats. In July, an agency official reportedly told her, “There is no credible argument that the inability of high school students to enter into NIL agreements” requires emergency measures.
The case faces hurdles.
Courts generally grant government agencies significant discretion in adopting and implementing policies. Here, agencies could argue that a ban for the upcoming season serves the state’s interests because the NIL market is currently unregulated and chaotic, and learning and education are paramount in high school education. The fact that 38 states handle NIL differently, agencies could argue, is irrelevant and a non sequitur because North Carolina agencies are tasked with furthering the state’s goals.
Authorities could also argue that a ban on NIL is literal and consistent with the direction of Senate Bill 452 because the law provides for the “use” of NIL. Authorities could say that they have determined that no use is permissible and have thus complied with the direction.
As for irreparable harm, it is usually the kind of harm that cannot be remedied later by monetary compensation, such as suspending an athlete for a game that is never replayed. Here, the agencies could claim that by claiming that her son will lose over a million dollars in lost NIL deals, Brandon foreshadowed the alleged harm. Is calculable and could therefore be remedied with money.
