Intellectual Property Blog

Opening the Door to Maximum Brand Value in a Post-House World

An athlete’s name, image, and likeness (“NIL”) are part of his or her brand. An athlete’s name, image, and likeness are all valuable assets. Professional athletes often protect their NIL, and now, as a result of the House v. NCAA settlement, student athletes can do the same.  

Protecting NIL Rights 

State right of publicity laws provide NIL protections, but the scope of right of publicity protections vary across different states. Twenty-six states, including Kentucky, have right of publicity statutes, and about thirty-eight states have some form of right of publicity protection.  

In some states, the justification for the protection is economic whereas in other states the right emerged as a form of privacy protection. Right of publicity provides student athletes with the right to control the commercial use of the athlete’s NIL; for instance, the name, likeness, signature, picture, perhaps even the jersey number, or mannerisms. There is no federal right of publicity.  

While right of publicity protections vary greatly by state, trademark rights are governed by both common law and federal law. In addition to obtaining common law trademark rights, athletes can seek federal trademark registrations for their NIL. These registrations can include registrations for not only names, but also an athlete’s voice, signature, or other personal identifiers.  

As with all trademark registrations, in order to obtain and maintain a trademark registration, the athlete must offer or license goods or services under its NIL. Put differently, the athlete must directly offer goods and services under its NIL or it must license goods or services under its NIL. TOM BRADY is registered for use in connection with “[e]ntertainment services in the nature of personal appearances by a sports celebrity” by TBD TM, LLC, a company owned by Tom Brady, for instance. Muhammad Ai Enterprises, LLC owns multiple registrations for MUHAMMAD ALI for use in connection with items like household goods, bags, clothing, and jewelry. 

College athletes have followed suit, acquiring trademark protection for their names and attributes. Trademark rights provide athletes with rights in a mark in connection with a particular goods and services and may deter unauthorized commercial use of that mark. Trademark registrations often serve to dissuade others from engaging in use of marks without permission—or when such impermissible use does occur, it gives trademark owners another tool to stop such use. 

Why Protection Matters Now 

Protecting and enforcing NIL rights has become even more important since the House v. NCAA settlement. Now that NIL opportunities exist for athletes, it is imperative that athletes both take steps to protect their NIL rights and actively enforce their rights. These steps will help athletes to maximize their brand value and potential future NIL opportunities.  

House v. NCAA 

The infamous case House v. NCAA class action lawsuit changed the game for student-athletes profiting from their NIL rights. On June 6, 2025, the U.S. District Court for the Northern District of California approved the landmark settlement in the House v. NCAA case (the “House settlement”). The House settlement allowed schools to directly compensate Division 1 athletes. 

 This fundamentally altered the economic model of college sports. The House settlement also permitted former student-athletes who did not previously have the opportunity to profit from their NIL rights to collect damages.   

The House settlement also alters NIL deals in college athletics. Student athletes can now profit from their NIL, but third parties interested in pursuing NIL deals with student-athletes must comply with state laws and NCAA regulations. The House settlement stipulates that entities like booster collectives can pay student-athletes for the use of their NIL so long as all payments to students are for a “valid business purpose,” which is  defined as “related to the promotion or endorsement of goods or services provided to the general public for profit, with compensation at rates and terms commensurate with compensation paid to similarly situated individuals with comparable NIL value who are not current or prospective student-athletes at the Member Institution.” This means that all agreements with booster collectives or similar entities must be entered into for an actual business purpose and cannot simply be for playing a sport at a school. The House settlement also sets forth a number of other rules for student-athletes to abide by. 

NIL Deals: The Rules 

Student athletes may receive compensation from third parties for use of their NIL, including from brand deals, brand appearances, and social media posts that promote a brand’s products and services. Any agreement where a student athlete is compensated for permitting a brand or company to use a student’s NIL constitutes a brand deal. Examples include appearances at autograph signings, clinics, or camps hosted by the athlete; starring in a commercial; endorsement agreements; sponsorship agreements; and generating social media content for a brand.  

Payment for use of a student athlete’s NIL is permissible, so long as the deal has a legitimate business purpose tied to a legitimate product, service, or event. The compensation for use of the student athlete’s NIL must be within a reasonable range for individuals with comparable influence and fame, and student athletes can engage agents or other marketing professionals for NIL activities.  

What is not allowed on the NIL front is payment without promotion; a brand cannot simply pay and athlete with no deliverable or appearance in return. The student athlete must provide a service in exchange for payment from a brand exchange for compensation—and that service must be defined at the time of agreement. Agreements with no defined terms or terms to be defined later are also impermissible, as are “pay-for-play” arrangements. Student athletes cannot be paid to play, including payment to merely attend or compete for a specific school.  

Reporting Requirements 

Once that money starts flowing, student athletes will want to keep good and accurate records or their earnings and will likely want to consult a professional for assistance. Income from NIL activities is generally taxable. Tax structure may vary based on filing status or business structure. Some athletes choose  to establish legal entities to conduct their businesses and protect their assets. These rules apply not only to collegiate student athletes, but to high school student athletes planning to play sports at a Division 1 college as well.  

High school prospects planning to play Division 1 sports must report all third-party NIL deals worth $600 or more beginning their junior year of high school or from July 1, 2025, whichever was later. Aggregate smaller payments with the same payer that total $600 or more must also be reported.  

These deals must be reported within fourteen days after the athlete starts full-time classes at the Division 1 school or before the athlete’s first game as a Division 1 athlete, whichever comes first. Student athletes can report deals by registering through the NIL GO platform, the online platform the College Sports Commission uses to confirm compliance with its rules. Similarly, two-year junior student athletes intending to play Division 1 must report all third-party NIL deals worth $600 or more made since the date of enrolling at their two year college or from July 1, 2025, whichever was later. Like with high school athletes, aggregate smaller payments with the same payer that total $600 or more must also be reported. As Deals must be reported via the NIL Go platform before registering at the D1 institution. For DII and DIII transfers coming to DI, student athletes must report all third-party NIL deals worth $600 or more from the date of enrolling at their two year college or from July 1, 2025, whichever was later. Aggregate smaller payments totaling $600 or more must also be reported. D1 to D1 transfers have a five-business-day reporting requirement for new or changed NIL deals, and the NIL Go portal is the platform used for reporting all deals. Schools and the College Sports Commission work with students to address issues with NIL deals and avoid eligibility consequences where possibility resulting from NIL deals. NIL professionals can also help explain applicable reporting requirements, rules, and laws. 

The Role of Advisors 

As the NIL landscape continues to evolve, professional guidance becomes increasingly important. Attorneys practicing in the intellectual property and NIL space can also ensure that athletes protect their NIL and enter into favorable and permissible NIL deals. 

Mari-Elise Paul is a Member of McBrayer PLLC and Chair of the Intellectual Property practice group, based in the firm's Louisville office. Her practice encompasses all facets of intellectual property, including clearance, prosecution, enforcement, and litigation. Mrs. Paul can be reached at mpaul@mcbrayerfirm.com or (502) 327-5400.

Services may be performed by others. This article does not constitute legal advice.