NIL law changes face of college athletics.

Byline: Heath Hamacher

Two years after the U.S. Supreme Court decided that college athletes can be compensated for the use of their name, image and likeness, lawyers who handle NIL cases are still defining the specifics of practicing in that field.

NIL law effectively became a field of practice after the court's unanimous decision in NCAA v. Alston. The 2021 case noted the "highly profitable" and "professional" nature of college athletics, particularly basketball and football.

The decision was much to the chagrin of the NCAA, which has long pointed to "amateurism" a term inconsistently defined by the organization in contending that paying student-athletes could erode the distinction between collegiate and professional sports. As the high court noted, American colleges and universities have always "had a complicated relationship with sports and money." The Supreme Court's ruling in no way addresses every associated issue courts are also considering whether student-athletes are employees, for example but did find that NCAA rules limiting education-related compensation violate the Sherman Antitrust Act.

Attorneys are clear that despite the nuances associated with new NIL regulations and law, it is not a new area of law, per se.

"I feel like it ties into so many different areas of law," said Jessica Visser, a partner with Varnum in Grand Rapids, Michigan, who co-chairs the firm's NIL practice. "IP (intellectual property) attorneys are definitely important in this space, contract attorneys. If you're representing student-athletes, I would say a trust and estates attorney would be a really good person to contact. I think it's really very unique and doesn't fit neatly into any other existing area of law."

Michael Rueda, partner and head of U.S. sports and entertainment at Withersworldwide in New York, agreed, saying he gets a little suspect when he hears someone refer to themselves as a "NIL lawyer."

"That's not really a thing. There are different elements to every deal," Rueda said. "It's highly dependent on how a deal is structured. It's an intersection of contract law, intellectual property law. It can involve other things such as forming new entities. Securities laws could be at play. You could be an IP lawyer, a corporate lawyer, a commercial lawyer; there are different elements to every deal."

In other words, there are no new principles at work in NIL law, only a difference in application.

NIL defined

Once upon a time, student-athletes were not allowed to accept even a dollar for their autograph or an...