What Price Fame?: Free-Market NIL Valuations and What They Mean for Universities After House
(Editor’s Note: What follows is an article republished from Sports Litigation Alert, which publishes every two weeks, featuring five case summaries and 12 to 16 articles. Subscribers have access to a searchable archive of more than 6,000 articles)
By Daniel A. Cohen,[1] Jennifer L. F. Cohen[2] and Elizabeth G. Hodges[3]
For intellectual property attorneys, the term Name, Image and Likeness raises eyebrows. Aren’t we just talking about publicity rights? Appearance fees? Contract terms for commercials and spokesperson agreements? All of these legal concepts have been around forever, but the O’Bannon case brought the term Name, Image and Likeness (NIL) to the forefront because a group of college athletes found it absurd that a video-game company could make money off theirimages and likenesses without paying them for such use.[4]
Since 2021, the college athletics industry has used the term NIL as the carve-out exception to amateurism,[5] the premise that college athletes are not employees and therefore should not receive direct payments (besides scholarships) to play a sport – but can be paid for the use of their NIL. As an intellectual property concept, highly-visible student-athletes may be compensated to the extent their NIL can bring recognition and attention to their schools.
However, the colloquial term “NIL” has often been misused to veer towards pay-for-play arrangements or transactions on the verge of employment. NIL is not supposed to be a payment for on-field performance.[6] It is also not supposed to represent a share of revenues brought in from broadcasting or ticket sales.[7] Shockingly, it is supposed to be a payment to license an athlete’s Name, Image and Likeness[8] – to use and benefit from their relative fame and notoriety – and we are going to move forward in this article with the premise that it is exactly that.
Third-Party NIL Marketplace / Group of Six Conference Experiences
Since the NCAA allowed athletes to be paid for NIL on July 1, 2021, some big companies have signed endorsement deals with college athletes in which they pay for the use of their NIL in the free marketplace. We’ve seen the Dr. Pepper commercials and applauded those athletes for marketing themselves so well. But murky issues remain after the House settlement – since colleges and universities can now directly pay college athletes for their NIL, how much is their NIL actually worth and how should universities make those distributions equitably under Title IX?
Arguably, when determining the NIL “worth” of a student-athlete, colleges should be able to look to the free market to see how companies with the freedom of making contracts based solely on market value, without inside influences, are valuing certain student-athletes. Simply, which student-athletes do they think can help bring attention to their products?
We endeavored to conduct a fair market value analysis of college athletes by analyzing their “true” (i.e., third-party) NIL deals to date as of August 2025.[9] Obviously, certain celebrity college athletes can skew any fair market value analysis – a spokesperson with heightened visibility can bring more recognition to a brand and, therefore, can command a higher price. Also, student-athletes at some schools may have more NIL opportunities than others, a larger athletics department with more publicity, or a wealthier alumni base. In order to even the playing field somewhat, we narrowed our analysis to the number of public, third-party NIL deals, but did so across an entire Group of Six conference without as many well-known players whose presence could skew the results.
The free market yielded interesting results.
The vast majority of “true” NIL transactions took place with male student-athletes – a whopping 76.6%. Out of 581 total NIL transactions analyzed in this conference, 136 were with female student-athletes (23.4%) and 445 were with male student-athletes (76.6%). Equity advocates may balk at that number, but the statistics seem to tip more heavily towards male student-athletes, at least at this date.
In a direct comparison of men’s and women’s basketball NIL deals, two “revenue” sports which have similar broadcast reach and similarly-sized rosters, men’s basketball had twice as many third-party NIL deals as women’s basketball.[10]
In this Group of Six conference, football and baseball had the highest number of NIL deals. On the women’s side, women’s soccer, softball, and track & field had the most NIL transactions. Given the emphasis in the media on men’s and women’s basketball as revenue-producing sports, it is important to note that, in this sample involving G6 universities, those may not be the athletes who garner the most NIL attention from outside companies. That evidence also may undercut reliance on “revenue sharing” from broadcast and streaming rights to apportion institutional House payments, as those student-athletes may not have as much market reach and individual visibility at some schools.
Applicability to Institutional House Payments
As colleges and universities apportion their $20.5 million of allowable House payments among their teams and student-athletes, football is expected to receive the largest share. If such determinations are consistent with the third-party NIL marketplace and the relative level of “institutional brand promotion” that team can bring to a university, then such payments will have a better chance of withstanding legal scrutiny than if the payments hinge on television revenues generated through conference-wide broadcast contracts signed years ago.
University NIL payments under House likely will be subject to an equitable availability analysis under Title IX:[11] are universities making such payments equitably available to male and female student-athletes based on their ability to bring recognition and visibility to the university? If so, then the differing values of athletes’ NIL, as supported by free-market analyses, may provide legitimate, nondiscriminatory reasons for schools to pay larger amounts to student-athletes with more visibility, whether from impressive, individual Instagram followings or from appearing on TV in their team’s games (i.e., today’s visibility, not previous years’ TV contract revenues). NIL valuations can differ greatly between student-athletes, just like it can between different celebrities or influencers. It will be important to tie NIL payments to “institutional brand promotion” because the higher NIL values of high-visibility student-athletes (or student-athletes on high-visibility teams) may provide legitimate justifications under Title IX for disparate House payments.
The market-based approach to NIL requires universities to develop intellectual property-based valuation models, putting values on the visibility that certain teams and student-athletes can deliver. The “true,” third-party NIL market should already do that. Universities that do so may be positioned to better survive legal and Title IX scrutiny than if House payments are done on a sweeping, “revenue”-based basis. The structure and analytical legitimacy of the approach are crucial for legal compliance.
[1] Dan Cohen is a partner with Barnes & Thornburg in Atlanta, GA. With more than 30 years in college athletics, counting his time working on campus, Dan’s NIL, Title IX and House practice is extensive. He has represented university athletics departments across 37 states over the last five years, including in every FBS conference. Viewing legal risks from all angles, Dan has built comprehensive, legally-compliant House implementation structures for 10 schools in FBS conferences over the last year and counseled countless other Division I schools on legal aspects of House implementation.
[2] Jennifer L. F. Cohen is a graduate of Duke University and Vanderbilt University School of Law. She is an intellectual property attorney and writer in Atlanta, GA.
[3] Elizabeth G. Hodges is a current student at Wake Forest University, majoring in applied statistics with minors in computer science and mathematics. She completed the statistical analysis of NIL deals used in this article during the Summer of 2025.
[4] O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015), cert. denied, 137 S. Ct. 277 (2016) (former UCLA basketball star Ed O’Bannon sued the NCAA and others on behalf of a class of Division I football and men’s basketball players, arguing that the NCAA’s rules prohibiting players from being compensated for the commercial use of their names, images, and likenesses violated antitrust laws; this ruling subjected the NCAA’s amateurism rules to antitrust scrutiny).
[5] The NCAA interim policy on NIL was adopted, effective July 1, 2021, to allow college athletes to engage in NIL activities. https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-likeness-policy.aspx
[6] NCAA Bylaw 22.01.1 (NIL “activities may not be used to compensate an individual for athletics participation or achievement”).
[7] The term “revenue sharing” (as opposed to NIL-related payment concepts) is legally problematic. Judicial opinions have made clear that university revenues are fungible and therefore are subject to Title IX’s equity mandates. In other words, athletics revenuesare not conceptually divisible by team, and so all revenues would be susceptible to equitable sharing under Title IX, if that terminology were appropriate.
Further, the term “revenue sharing” implies pay-for-play (e.g., paying football players a portion of (likely non-divisible) “football revenues” because they are on the football team), which remains prohibited under NCAA rules and approaches employment. See NCAA Bylaw 22.01.1 (prohibiting payment “for athletics participation or achievement”); see alsoHouse Injunctive Relief Settlement, at Article 4, Section 2 (pages 19-20) (“Except to the extent … of this Injunctive Relief Settlement, the NCAA’s and conferences’ existing rules limiting the amount of compensation and benefits to Division I student-athletes may remain in effect.”).
Lastly, “revenue sharing” is not actually authorized by the portion of the House settlement agreement applicable to university NIL payments, despite media and industry statements to the contrary. The House back damages allocations (which may theoretically be construed as “revenue sharing”) have almost no relevance to an individual school’s Title IX analysis for its own, forthcoming House payments. The discussion of “shared revenue” in the House injunctive relief settlement relates solely to the calculation or amount of the total “benefits pool” available for schools to distribute to student-athletes, and not the sources of funds (revenues) that a school can use to pay individual student-athletes merely based on their team’s perceived role in generating such revenue. Injunctive Relief Settlement, at Article 3, Section 1 (pages 9-12).
[8] Specifically, the House settlement allows schools to directly pay their student-athletes “to enter into an exclusive or non-exclusive license and/or endorsement agreement for that student-athlete’s NIL, institutional brand promotion, or other rights as permitted by this Injunctive Relief Settlement.” Injunctive Relief Settlement, at Article 2, Section 2 (page 5); see also NCAA Bylaw 22.01.1 (“An individual may receive compensation for the use of the individual’s name, image and likeness, [the valuation of] which may be secured or compensated based, in whole or in part, on athletics skill or reputation.”).
[9] This statistical analysis was done based on publicly-available NIL information. No client confidential information on NIL deals was used. Many of the deals were self-reported by student-athletes. Others were covered by news media or advertised by the company supplying the NIL deal. Since dollar amounts were kept private for many of these NIL deals, we focused on the number of NIL transactions, rather than the dollar amount of each transaction.
[10] In the conference analyzed, there were a total of 36 NIL basketball transactions – 24 in men’s basketball (4.1% of the total conference NIL transactions) and 11 in women’s basketball (1.9% of the total conference NIL transactions).
[11] 20 U.S.C. § 1681(a); 44 Fed. Reg. 71,413, at 71,415 (Section VII.A.3.b).