In a previous article on Miller Nash's IP & Technology Law Trends blog, my colleague Bob Cumbow detailed the right of publicity (ROP), a longstanding economic right in the value of one’s own name, image, and likeness (NIL) which formed the basis for athletes and other public figures to commercially exploit their celebrity. For the first time in the NCAA’s long history, beginning July 1, 2021, student-athletes can now do the same, a development which has sparked substantial opportunity and equal uncertainty in a college sports landscape not designed to accommodate such commercial activity.
Athletes and NIL Historically
Since as early as the 1920s, companies have been using professional athletes as brand representatives. Babe Ruth, the baseball player that defined more than two decades of sports in America, endorsed everything from sports equipment to candy bars, to a signature underwear line. Babe Ruth was a forerunner in a long line of athletes that teamed up with brands to commercialize their NIL, including Joe Louis (Budweiser), Michael Jordan (Nike), and Stephen Curry (Under Armour). However, until recently, collegiate student-athletes were prohibited from exploiting the value of their personal brands, value that has increased hand in hand with the ever-growing popularity and accessibility of college sports.
Shortly after its formation in 1906, the NCAA established rules prohibiting student-athletes from being paid based on their participation in sports, adhering to a strict amateurism model. It wasn’t until a landmark court decision1 and several new state laws permitting student-athletes to monetize their NIL2 that the NCAA adopted an interim policy on July 1, 2021, that allowed student-athletes to profit from their NIL.3
The Aftermath Leading to the House Settlement
Not long after the NCAA adopted this interim policy, student-athletes, institutions, and third parties alike were inking deals to license and use student-athletes’ NIL. Paying students for their athletic performance or as an inducement to attend a particular school was still prohibited, but there were few constraints or guidance otherwise. Student-athletes, boosters, sponsors, and schools pushed the bounds of the interim policy as they navigated the new NIL landscape. The chaos continued until student-athletes Grant House and Sedona Prince filed suit against the NCAA and its member conferences in the U.S. District Court for the Northern District of California, seeking NIL back damages and an injunction to force the defendants to lift restrictions on student-athlete broadcast revenue sharing.
The House litigation reached a settlement in March 2024 which, among other points, (a) provided $2.8 billion in back-pay damages to former Division 1 student-athletes, (b) established a revenue sharing model whereby schools can pay student-athletes a portion of their broadcast revenues, (c) empowered the conferences to designate an entity to enforce the rules agreed to in the settlement, and (d) a ten-year injunction to ensure adherence to the settlement terms.
The NIL Deal Today: Common Practices, Issues, and Limitations
Common Practices
Following the House Settlement, there are two main mechanisms by which student-athletes can monetize their NIL. First, all Division I schools may choose to opt into the new direct revenue sharing payment model established by the House Settlement, whereby schools can pay a specified portion of their athletic revenue directly to their student-athletes in exchange for an exclusive or nonexclusive license to utilize their NIL.4 Second, student-athletes may still pursue NIL agreements with third parties in an ever-evolving market overseen by the newly deputized College Sports Commission (CSC), the enforcement entity designated by the conferences pursuant to the House Settlement.
Under typical NIL deals, student-athletes offer two main forms of consideration. First, student-athletes will grant their counterparty a license to use their NIL in anything from promotional materials to apparel and merchandise. These licenses may be nonexclusive or exclusive, with many deals restricting a student-athletes’ ability to engage with competing brands or wear competing products during promotional events. Second, student-athletes may agree to various promotional services, such as attending in-person appearances and speaking engagements or creating sponsored social media content.
The market for student-athlete NIL deals has exploded over the last five years, topping $1.5 billion in 2025 and projecting to reach at least $2.55 billion in 2026. Individually, top student-athletes are earning $2 million to $6.8 million in exchange for their NIL rights.5 Unlocking the NIL market in college sports, however, has not been without its growing pains.
Leaving Your NIL Rights Behind: The Lingering Exclusivity Issue
As discussed above, student-athletes may grant their school an exclusive license to use their NIL in exchange for revenue share compensation. Some revenue-share agreements even grant this exclusivity for the entire period of the student-athlete’s collegiate eligibility. So, what happens if the student-athlete transfers to a new school?
The story of Demond Williams Jr. offers the most illustrative example. After signing a reported $4 million revenue-share contract with the University of Washington6 at the close of the 2025 season, the quarterback announced in January of this year he would be transferring. The problem: his revenue-share contract granted UW an exclusive, irrevocable license to use his NIL for the entire period of his eligibility. As a result, Williams would then be precluded from contracting with his potential new school to license or otherwise commercialize his NIL. This exclusivity provision was among the primary reasons Williams decided to return to UW for the upcoming 2026 season.
When Student-Athlete and School Endorsements Conflict
txt Athletic equipment and apparel companies regularly bid between eight and nine figures for the right to be the sole provider for top Division I athletic departments.7 What happens then if a student-athlete at that institution secures an endorsement deal with a competing apparel brand? Can the student-athlete wear Adidas cleats when competing for their Nike-sponsored school? The NCAA answered this question by directing student-athletes to their respective state laws and institutional NIL policies, many of which give preference to existing school sponsorship agreements.
For example, California’s NIL Law prohibits student-athletes from entering into an NIL contract “if a provision of the contract is in conflict with a provision of the athlete’s team contract Bars,” but the California law also provides that team contracts can only prevent student-athletes from engaging in NIL activities when they are participating in official team activities.8 This dynamic is common among most states, so (without diving into what would be considered “official team activities”) sponsors and student-athletes should be cognizant of this boundary and negotiate accordingly.
Use of School IP in NIL Activities
Student-athletes must also be mindful about using their school’s intellectual property as part of their NIL activities. The use of school names, logos, facilities, mascots, and uniforms is heavily restricted by state laws, school policies, and the NCAA interim rules. Schools frequently prohibit the use of their intellectual property in NIL activities to protect brand integrity and to manage potentially conflicting sponsorships. Student-athletes and potential sponsors then must have a clear understanding about what intellectual property may be featured in promotional materials and events. If school intellectual property is necessary to the endorsement project, the parties should involve the school early in the negotiation process to secure its approval.
Other limitations on NIL activity
Student-athletes must maneuver other limitations as well. NIL laws in most states prohibit endorsements related to certain industries, such as alcohol, gambling, tobacco, and adult entertainment.9 Similar prohibitions exist for professional athletes as well (often negotiated through collective bargaining agreements) so leagues and member teams can protect their own brands from negative affiliations that athletes might otherwise create by endorsing controversial industries.
CSC Oversight and Regulating Pay for Play
NIL payments have quickly become an opportunity for schools to attract top talent. Schools which can offer recruits the most opportunities to commercialize their NIL have the best chance at signing student-athletes graduating high school or transferring from another school. Naturally, some people question whether many of these transactions are “true NIL” deals made in exchange for use of a student-athlete’s NIL versus “pay-for-play” deals that compensate a student-athlete for their performance on the field or court, a practice which is still prohibited under NCAA rules and monitored by the CSC.
Student-athletes must report to the CSC all NIL deals in excess of $600, or if the student-athlete will not make more than $15,000 total, any deal above $2,500. The CSC then reviews to determine (a) the payor’s association (whether it is an “associated entity”),10 and if so, then (b) whether the payment is for a valid business purpose,11 and (c) whether the range of payment is commensurate with the fair market value of the student-athlete’s NIL and services rendered.12 Additionally, deals that simply “warehouse” a student-athlete’s NIL rights—meaning the agreement does not actually activate the student-athlete’s NIL or require any deliverables from the student-athlete—are flagged for failing to defeat the pay-for-play presumption.
This standard was recently tested in arbitration when members of the University of Nebraska football team challenged the CSC’s rejection of their proposed NIL deals, deals in which Nebraska’s multimedia rights partner Playfly Sports purchased the student-athletes’ NIL rights with the intent to hold, market, and sell them to sponsors thereafter. The arbitrator sided with the CSC, finding first that Plafly is an associated entity, and second, that the deal structure lacked any direct activation of the NIL rights and violated the bar against “warehousing.”13 Essentially, the CSC wants to ensure that student-athletes are being compensated for the value of their NIL rights and services, rather than using NIL as a pretense for a pay-for-play agreement.
What’s Next for NIL?
The evolution of NIL rights has fundamentally transformed college athletics from a model built on strict amateurism into a rapidly expanding commercial marketplace. What began as a recognition of student-athletes’ publicity rights has developed into an economic ecosystem that now rivals many professional sports structures. NIL compensation continues to grow in both volume and value, with marquee athletes securing increasingly sophisticated endorsement, licensing, and content-creation agreements. At the same time, universities and conferences are benefiting from record-breaking media rights arrangements, expanded multimedia partnerships, and sustained growth in television viewership and fan engagement across major college sports.
The next phase of NIL may prove even more consequential. As discussed above, institutional revenue sharing caps will continue to increase over time, while the third-party NIL marketplace for student-athlete opportunities and demand grows at an exponential pace. Whether future legislation, litigation, or regulatory action ultimately imposes greater structure on this environment remains uncertain.14 What is certain, however, is that NIL is no longer an emerging concept—it is a central economic pillar of modern college sports, and its influence will continue to shape the industry for years to come.
If you have questions about the future of NIL, please contact a member of Miller Nash’s Sports, Entertainment & Media team.
[1] In NCAA v. Alston, the Supreme Court issued a narrow opinion enjoining the NCAA from restricting education-related benefits but also signaled an imminent end to restrictions on other forms of student-athlete compensation and the NCAA’s long held amateurism defense to antitrust challenges. 141 S. Ct. 2141 (2021).
[2] California passed the Fair Pay to Play Act in September 2019 which, among other provisions, barred colleges from preventing student-athletes from participating in athletics or receiving athletic scholarships for earning NIL compensation. Florida passed similar legislation in June 2020, which led to over twenty states enacting NIL legislation by July 1, 2021.
[3] Interim NIL Policy, NCAA (July 2021) https://generalcounsel.uoregon.edu/interim-nil-policy;
Michelle Brutlag Hosick, NCAA adopts interim name, image and likeness policy” NCAA (June 30, 2021) https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-likeness-policy.aspx.
[4] The revenue share cap was set at $20.5 million for the 2025-26 season and will rise four percent the following two years. The cap will then be reevaluated every three years over the duration of the 10-year settlement period.
[5] Nate Cunningham, Highest Paid College Athletes via NIL Deals in 2025-26, Sports Illustrated (July 14, 2025) https://www.si.com/college-basketball/highest-paid-college-athletes-via-nil-deals.
[6] Pete Thamel, ‘Fully committed’ Demond Williams Jr. to stay at Washington, ESPN (Jan. 8, 2026), https://www.espn.com/college-football/story/_/id/47554312/demond-williams-jr-transfer-stay-washington.
[7] Jeff D’Alessio, Open-records report, 20 things to know about athletic apparel contracts, The News-Gazette (Oct. 2, 2023), https://www.news-gazette.com/business/open-records-report-20-things-to-know-about-college-athletic-apparel-contracts/article_47f6cfe1-8c2b-5450-bdd9-877395bde72f.html.
[8] California Education Code § 67456 (2025).
[9] State + Federal Legislation Tracker, Troutman Pepper (updated July 17, 2025), https://www.troutman.com/state-and-federal-nil-legislation-tracker/.
[10] “Associated entity” means one that (a) exists primarily to promote or support the school’s athletic program or student-athletes, (b) has been directed by the school to assist, or has assisted, in recruiting or retaining student-athletes. NCAA Bylaw 22.02.1 (Adopted June 6, 2025).
[11] A “valid business purpose” is one that relates to the promotion or endorsement of goods or services provided to the general public for profit. NCAA Bylaw 22.1.3 (Adopted June 6, 2025).
[12] “Fair market value” means payment at rates and terms commensurate with compensation paid to similarly situated individuals with comparable name, image and likeness value who are not prospective student-athletes or student-athletes of the institution. NCAA Bylaw 22.1.3 (Adopted June 6, 2026).
[13] Stewart Mandel, et al., Arbitrator upholds ruling denying NIL deals worth $7.5 million to 18 Nebraska football players, The Athletic (May 12, 2026), https://www.nytimes.com/athletic/7271578/2026/05/11/nebraska-nil-case-playfly-college-sports-commission/.
[14] A new federal legislative proposal, the Protect College Sports Act of 2026, was formally introduced to the Senate on May 27, 2026. Among several other provisions, the Act would codify student-athletes’ rights to compensation for NIL, preempt the patchwork of state NIL laws, grant an antitrust exemption for media rights pooling among the conferences, and impose restrictions on student-athlete transfers. As of the date of this article, a full Senate floor vote has not been scheduled for the Act.
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