Ohio High School Athletic Association News: Update on NIL and Other Legislative Action and Proposals

News Release – Ohio High School Athletic Association

Executive Director Doug Ute

www.OHSAA.org  |  twitter.com/OHSAASports  |  www.Facebook.com/OHSAASports

For Immediate Release – August 10, 2021

Action taken by the Ohio General Assembly has implications on high school sports

COLUMBUS, Ohio – The Ohio High School Athletic Association recently updated its member schools on several legislative issues that have developed or are in discussion within the Ohio General Assembly and their implications for schools and interscholastic athletics.

Included in the recent legislative action are Name, Image and Likeness, transgender student-athlete participation, restoration of parts of the OHSAA transfer bylaw, freedom of religious expression, a proposal for extra semesters of athletic eligibility, increased consequence for an assault on a sports official, and more.

Name, Image & Likeness

Current Impact on any Member Schools? No

Summary: Within House Bill 110 (“the budget bill”), language was added in Sec. 3376.03 to allow collegeathletes to earn compensation as a result of the use of the student’s name, image, or likeness. This has no impact on students participating in interscholastic athletics at the high school level, therefore OHSAA Bylaw 4-10, which is the OHSAA Amateurism bylaw, is still in effect, but it is being reviewed for potential modifications that would go to the membership for a vote during the 2022 referendum cycle. OHSAA student-athletes are permitted to receive awards/prizes which do not exceed $400 in value if the award is a direct result from participation in their sport (Bylaw 5), such as a “Player of the Game” gift card to a local restaurant, or an athlete competing in an event and winning a prize. However, OHSAA student-athletes are not permitted to hire an agent or receive money/cash prizes for their participation in their sport. They are also not permitted to capitalize on their athletic fame by receiving money, merchandise or services of value based on the notoriety they achieve as an athlete.

Transgender Athlete Participation

Current Impact on any Member Schools? No, but possibly forthcoming

Summary: The OHSAA transgender policy currently requires one year of hormone treatment prior to a transgender female being permitted to participate on a girls team. However, there are currently two bills, House Bill 61 and Senate Bill 132, which would prevent any participation of transgender females on female athletic teams. Both bills are currently in committee and another hearing is expected to take place for HB61 in the fall. The current OHSAA transgender policy is posted at: https://ohsaaweb.blob.core.windows.net/files/Eligibility/OtherEligibiltyDocs/TransgenderPolicy.pdf

Extra Semester(s) of High School Athletic Eligibility

Current Impact on any Member Schools? No

Summary: There are currently two bills, House Bill 316 and Senate Bill 200, which would look to extend a student-athlete’s eligibility at the high school level past the traditional eight semesters outlined in Bylaw 4-3-3 as a result of covid-related educational issues. Both of these bills are currently in committee but do not appear to be moving at a rate which would impact any student for the 2021-22 school year. Unless informed otherwise, member schools should be following the guidance and applicable exceptions in Bylaw 4-3-3, which limits a student to eight semesters of athletic participation taken in order of attendance regardless of whether or not the student participates.

Restoration of Transfer Exceptions/Bylaws

Current Impact on any Member Schools? Yes, expected Fall 2021

Summary: Within House Bill 110 (“the budget bill”), which was passed on June 30, 2021, language was added to repeal 3313.5316 that will now allow the OHSAA to restore the previously deleted language from the transfer bylaw in 2019. At the August 2021 Board Meeting, the Executive Director’s Office will be making a recommendation to the Board of Directors on the most appropriate way to potentially restore these exceptions/rules for the remainder of the 2021-22 school year. The bylaws/exceptions which are impacted include:

·        BYLAW 4-7-2 – Potentially restore exceptions 5 (State School for the Blind or State School for the Deaf) and 6 (home not ready for habitation under ORC §§ 3313.64 (F)(6) or 3313.64 (F)(7))

·        BYLAW 4-7-4 – Potentially restore Exception 5- Intra-district transfer from a poor performing school.

·        BYLAW 4-7-5 – Potentially restore Inter-district transfer from a poor performing school.

·        BYLAW 4-7-6 – Potentially restore the “redistricting option.”

·        BYLAW 4-7-7 – Potentially restore the “Transportation and Financial Hardship Options.”

Student Religious Expression in Extracurricular Activities

Current Impact on any Member Schools? Likely

Summary: OHSAA bylaws and sport regulations are currently in compliance with Senate Bill 181, but the proposal, if passed, would prevent schools or an association from adopting a rule, bylaw, or other regulation that prohibits or creates any obstruction to wearing religious apparel when competing or participating in interscholastic athletics or extracurricular activities, including requirements that participants obtain advanced approval, written waivers, or any other permission. Any person/entity who would violate this section would be subject to a civil action for damages, injunctive relief, or any other appropriate relief. This bill passed through the Senate with almost unanimous support and is now in the House Primary and Secondary Education Committee for vetting.

Increase Penalties for Assault on a Sports Official

Current Impact on any Member Schools? No, but likely forthcoming

Summary: House Bill 44, if passed, would increase an individual’s assault penalty if the victim is a sports official and the assault is committed during or immediately before or after a sports event, or in retaliation for the official’s actions as a sports official. It would increase the penalty for assault to a fifth-degree felony and require a mandatory fine and community service for the misdemeanor offense of “assault.” Though this should have minimal impact on our schools, administrators should be aware of it as they assist the officials in navigating confrontational situations.

Students Transferring to an Online School

Current Impact on any Member Schools? Yes, immediate

Summary: Within House Bill 110 (“the budget bill”), language was added in Sec. 3302.42, which requires a school district to “assign all students engaged in online learning to a single school which the department shall designate as a district online school.” It should be noted that the option of operating a Blended Learning model under Revised Code section 3302.41 or an Alternative School pursuant to Revised Code section 3313.533 is NOT impacted by this new law. Therefore, if a school district has elected to open a new online school with a separate IRN, as opposed to using the Blended Learning model within 3302.41, students who transfer to this new school are, by definition, transfer students in accordance with Bylaw 4-7-2. However, the Executive Director’s Office has elected to utilize Constitution Article 6-1-9 and waive strict compliance with the transfer bylaw but only for those student-athletes transferring to a new online school sponsored by the district and specifically created in response to 3302.41. The decision to waive strict compliance with this transfer rule only for these students is because had this law not been implemented, the student(s) would have otherwise maintained their enrollment at the member school to access online schooling in that capacity.

Delay in ODE Background Checks for Pupil Activity Licenses

Current Impact on any Member Schools? Yes, immediate

Summary: Though this update is not about new legislation, the OHSAA Office has been notified of messages going to school administrators alerting them of “potential delays associated with criminal background checks that are causing subsequent delays in the Ohio Department of Education’s ability to issue and renew certain professional licenses including teaching and pupil activity licenses.” If a school has a coach who is going through the renewal process and has experienced a delay in his/her certification, please note that ORC §119.06 will permit the school to allow renewing coaches who have completed all required applications/registrations within the time and manner provide by the rule of ODE to continue coaching even if they are awaiting a ruling from the agency. This law does not apply to coaches applying for their initial certification. Please review this link or contact the OHSAA compliance department if you have any questions about this law: https://codes.ohio.gov/ohio-revised-code/section-119.06

And in other noteworthy national news:

Mahanoy Area School District v. B.L. – Supreme Court

Summary: The US Supreme Court ruled in favor of a teenager who was kicked off her school cheerleading squad over a profane social media post. In an 8-1 ruling, it concluded that the Mahanoy Area School District had violated Brandi Levy’s freedom of speech under the First Amendment since her comments were done via social media off campus. The ruling states that schools cannot punish a student for their speech off campus unless it “materially disrupts classwork or involved substantial disorder or invasion of the rights of others.” The ruling still allows schools to discipline students for off-campus speech that’s deemed racist, bullying, threatening or otherwise disruptive to learning, and schools can still discipline a student for vulgar language on campus if it’s deemed disruptive. In an article from the AP News, Justice Samuel Alito wrote, “If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory.”

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