Athletes and College NIL

NIL is the right of publicity, applied to people who were told for a century that they did not have one. Name, image, and likeness rules govern whether and how a college athlete may be paid for the commercial use of their own identity while remaining eligible to compete. There is no single national NIL rulebook. What exists is a stack: a state-law property right underneath, state NIL statutes on top of that, and NCAA plus settlement-driven rules on top of those.

The underlying right was never really in doubt. Every athlete has always owned a right of publicity to the extent their state recognizes one. What was in doubt was whether an association could condition eligibility on giving that right away for free. Between 2015 and 2025, courts and legislatures answered no.

What NIL actually is, and what it is not

NIL compensation is payment for identity, not for performance. An endorsement, a camp appearance, an autograph session, a sponsored post, a video game avatar, a trading card: each uses the athlete’s persona commercially, and each is the kind of transaction the right of publicity has always covered. The athlete is being paid the way any other person with commercial identity value is paid.

Pay-for-play is payment for athletic participation or achievement, or for enrolling at a particular school. The NCAA’s interim policy drew that line hard: no compensation contingent on enrollment, no compensation for performance, no NIL deal used as a recruiting inducement.

The line was always artificial and is now barely load-bearing. Since the House settlement, schools themselves pay athletes directly out of revenue, which is not identity licensing by any honest reading. The pay-for-play prohibition now mostly disciplines third-party collective money rather than institutional money.

How the old model collapsed

The structural history matters more than any single rule, because the rules keep changing and the direction does not.

O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015), established that NCAA amateurism rules are not immune from antitrust scrutiny. Ed O’Bannon sued after seeing his likeness in a video game. The Ninth Circuit agreed the rules were an unlawful restraint but drew back from cash payments untethered to education, so the doctrinal win outran the practical remedy.

NCAA v. Alston, 594 U.S. 69 (2021), was unanimous and did the real damage. The Court affirmed an injunction against limits on education-related benefits and refused the NCAA’s request for special antitrust deference. Justice Kavanaugh’s concurrence went further than the holding: “The NCAA is not above the law,” and the remaining compensation rules would likely fail ordinary rule-of-reason analysis. Every actor in college sports read that concurrence as a demolition notice.

State legislatures had already moved. California’s Fair Pay to Play Act triggered a wave, and on July 1, 2021, a cluster of state NIL statutes took effect simultaneously. Facing laws that forbade it from enforcing its own rules in those states, the NCAA adopted an interim policy on June 30, 2021, the day before, that effectively suspended NIL restrictions. It never adopted permanent replacement rules.

The House settlement and what it changed

In re College Athlete NIL Litigation, the consolidated action better known as House v. NCAA (with Hubbard and Carter), settled the back end and the front end at once. Judge Claudia Wilken granted final approval on June 6, 2025, in the Northern District of California, with implementation beginning July 1, 2025.

Two components matter:

• Back damages of roughly $2.576 billion, commonly reported as $2.8 billion, paid over ten years to athletes who competed from 2016 forward and were denied NIL income under the old rules.
• Revenue sharing going forward. Schools that opt in may pay athletes directly under an annual cap starting near $20.5 million per school in 2025-26 and escalating over a ten-year term. Scholarship limits gave way to roster limits.

Enforcement moved to a new body, the College Sports Commission, with a clearinghouse called NIL Go, administered by Deloitte, that launched June 11, 2025. Third-party NIL deals of $600 or more must be reported, and are screened for a valid business purpose and fair market range. That screen is precisely where collectives, the booster-funded entities that formed to route money to rosters, meet resistance: a collective paying above market for an appearance nobody attended looks like an inducement, not an endorsement.

The open questions

Employment. Johnson v. NCAA, 108 F.4th 163 (3d Cir. 2024), held that athletes are not categorically barred from Fair Labor Standards Act claims and rejected the NCAA’s “student-athlete” label as dispositive. The court adopted an economic-realities test asking whether athletes perform services primarily for the school’s benefit, under its control, for compensation. The case returned to Judge Padova in the Eastern District of Pennsylvania and was still in pretrial motions in 2026. Direct revenue-share payments make the employment argument harder to answer, not easier.

Federal preemption. Roughly 35 states have active NIL laws with materially different terms, which means an athlete’s rights change when they transfer. The SCORE Act stalled in the House. The bipartisan Protect College Sports Act of 2026 cleared the Senate Commerce Committee 19-9 in June 2026, offering a national standard, a 5 percent agent-fee cap, a private right of action, and a targeted antitrust exemption. It had not become law as of mid-2026.

Immigration. F-1 status limits unauthorized employment, and the definition sweeps in appearances and content creation performed inside the United States. International athletes are effectively confined to passive royalty and licensing structures or to activity performed abroad. DHS has not issued guidance.

The doctrinal roots people forget

NIL did not spring from nothing in 2021. It is right-of-publicity law, and the athlete cases built the doctrine.

Zacchini v. Scripps-Howard Broadcasting, 433 U.S. 562 (1977), the Supreme Court’s only right-of-publicity decision, held that the First Amendment did not protect broadcasting a performer’s entire act. It remains the anchor for the idea that appropriating an athlete’s economic value is not automatically speech.

The video game cases did the sorting. Hart v. Electronic Arts, 717 F.3d 141 (3d Cir. 2013), and In re NCAA Student-Athlete Name & Likeness Licensing Litigation (Keller), 724 F.3d 1268 (9th Cir. 2013), both rejected EA’s transformative-use defense. A realistic avatar wearing the athlete’s number, position, and home state is not transformed by letting the user change its hair. Those rulings, not any statute, are why NCAA-branded video games disappeared and why they returned only once athletes could be paid.

The counterweight is C.B.C. Distribution & Marketing v. MLB Advanced Media, 505 F.3d 818 (8th Cir. 2007), where fantasy operators using real player names and statistics won on First Amendment grounds. Names and statistics are public information about newsworthy figures. Realistic avatars sold as entertainment are something else. That distinction still governs.

Frequently asked questions

What are the college athlete NIL rules? NIL rules are a layered system, not one rulebook. State right-of-publicity law gives an athlete the underlying property right in their name, image, and likeness. State NIL statutes, which vary widely and exist in roughly 35 states, set eligibility conditions on how that right may be exercised. NCAA rules and the House v. NCAA settlement terms then add a third layer: third-party deals worth $600 or more must be reported to the NIL Go clearinghouse and must show a valid business purpose at a fair market rate. Schools that opted into the settlement may also pay athletes directly under an annual cap that started near $20.5 million per school in 2025-26.

Is NIL the same thing as pay-for-play? Formally, no. NIL compensation is supposed to be payment for the commercial use of the athlete’s identity: an endorsement, an appearance, an autograph session, a social post. Pay-for-play means payment for athletic performance or for enrolling somewhere. The House settlement blurred the line by letting schools pay athletes directly out of revenue, so the distinction now mostly polices third-party collective deals rather than school money. Enforcement asks whether the deal has a valid business purpose or is a recruiting inducement wearing an endorsement costume.

Are college athletes employees? Not settled. In Johnson v. NCAA, 108 F.4th 163 (3d Cir. 2024), the Third Circuit held that athletes are not categorically barred from claiming employee status under the Fair Labor Standards Act and adopted an economic-realities test. The case went back to the Eastern District of Pennsylvania and remained in pretrial litigation into 2026. Justice Kavanaugh’s concurrence in NCAA v. Alston signaled the same vulnerability. Nothing has yet held that Division I athletes are employees as a class.

Can international student-athletes sign NIL deals? Only in a narrow way. F-1 status sharply limits unauthorized employment, and immigration law reads employment broadly enough to capture appearances, autograph signings, and content creation performed in the United States. Passive income such as royalties or licensing is generally safer, and activity performed while physically abroad falls outside F-1 work rules. DHS has issued no clear guidance, so schools and collectives operate on risk assessments rather than settled rules.

Authorities and sources

• NCAA v. Alston, 594 U.S. 69 (2021) (Cornell LII)
• Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977) (Cornell LII)
• 29 U.S.C. § 203: FLSA definitions, including “employee” (Cornell LII)
• 15 U.S.C. § 1: Sherman Act, restraint of trade (Cornell LII)
• 8 C.F.R. § 214.2(f): F-1 student status and employment limits (Cornell LII)
• Right of publicity overview (Cornell LII Wex)
• College Athlete Compensation: Impacts of the House Settlement (Congressional Research Service)
• H.R. 4312, SCORE Act, 119th Congress (Congress.gov)
• S. 4668, Protect College Sports Act of 2026, 119th Congress (Congress.gov)
• Johnson v. NCAA: Third Circuit Allows College Athletes’ Claim for Wages to Move Forward (Congressional Research Service)
• Judge grants final approval to House v. NCAA settlement, June 6, 2025 (ESPN)

Going further: How college athlete NIL deals actually work .

This page is general legal information, not legal advice, and it does not create an attorney-client relationship.