Chris Bayh: College sports post-House: Where we are in the NIL era

Many college sports fans are feeling overwhelmed about the business of college sports today. We know that college athletics functions in fundamentally different ways than what we grew up with, but do we really understand how it works?

This month marks the start of year two of the “House era.” A full academic year has passed since the approval and implementation of the landmark settlement in House v. NCAA, which established the name, image and likeness regulatory framework that applies to college athletics today.

This settlement resolved some big questions, but plenty remain open. For example, the settlement established some clear limits and procedures, but we still have very little precedent to see how those will be enforced. And the ground keeps shifting. In this one short year, the NCAA has adjusted eligibility rules, federal lawmakers have proposed sweeping college sports legislation, and state legislatures continue to make and refine their own NIL laws.

If you practice higher education law, you are living these issues every day. But most lawyers — even those of us who are die-hard fans — choose to practice law elsewhere. It’s hard to blame the fan who tunes out the complicated business part of college sports and instead focuses on halftime adjustments and recruiting rankings.

For those interested in understanding NIL and the college sports business a little better, let’s look at how we got here and what lies ahead.

The House litigation and settlement

Fans hear about NIL and House all the time, but sports commentary seldom unpacks where those terms come from. Let’s dig into it a bit.

The House antitrust litigation ended last June in a landmark settlement and court order that transformed the world of college athletics. The case consolidated parallel class actions brought by NCAA Division I athletes against the NCAA and the traditional “Power Five” conferences. These suits came together in the Northern District of California before District Judge Claudia Wilken, a veteran of landmark student-athletes’ rights cases. The House litigation challenged NCAA rules barring direct payments from schools to student-athletes, arguing that those restrictions violated antitrust law.

The settlement and order provided $2.8 billion in NIL payments to student-athletes from years past — i.e., “back damages.” But the settlement’s greatest impact is in its injunctive relief, which creates a new framework for future compensation. This established two key branches of future remuneration.

First is via direct licensing deals between institutions and student-athletes, for use of the student-athletes’ names, images and likenesses, such as in university promotions. Every time a school wishes to sell a student-athlete’s jersey, put her face on a billboard or tweet out a highlight of her scoring the winning basket, it is using the athlete’s personal NIL. And, by law, it now needs a license to do that, and it is now allowed to pay the student-athlete for that license. This works for both sides: Student-athletes get value for their proprietary NIL, and institutions use this NIL to promote themselves and drive institutional visibility. If you’ve heard of institutional “revenue share,” that refers to this category.

Second is payment from third parties for use of student-athletes’ NIL. For example, this is when a commercial brand pays a student-athlete to endorse its product or appear in its commercials. If you’ve heard of “third-party NIL,” that’s this category.

Notably absent is a third avenue of relief — one that the student-athletes sought at the outset of the House litigation but ultimately agreed to put aside. That was separate, direct compensation from the universities for the students’ “athletic services” — in other words, employment. If you’ve heard of the concept of “pay for play,” that’s this idea. The settlement explicitly excluded any injunctive relief on this front and explicitly created no employment or fee-for-services arrangement. Judge Wilken ratified that choice in approving the settlement. This means that NCAA rules prohibiting “pay for play” still stand, and the settlement bars all class members from challenging those rules as long as the settlement remains in effect.

Judge Wilken formally approved the settlement on June 6, 2025. Its injunctive relief took effect the following July 1, the start of that academic year. See In re Coll. Athlete NIL Litig., 803 F. Supp. 3d 959 (N.D. Cal. 2025). And although certain objectors have appealed the settlement’s approval to the 9th Circuit, and although the appeal is still pending, the business arrangement that the settlement designed has been implemented and remains in effect.

Challenges in the first year of House

The House settlement and order set up the theoretical framework. It’s been interesting to see things unfold in practice. Some high-level observations:

First is NIL regulatory compliance. Post-House, the NCAA continues its important traditional roles in regulating eligibility, academic standards, tampering, banned substances and so on. But House created new NIL fairness standards and a new entity to enforce them: the College Sports Commission, or CSC. The CSC is responsible for reviewing and scrutinizing NIL deals through a specially created portal. And while the CSC has cleared more than three-fourths of the deals it has processed, it has rejected others for compliance problems such as failures to meet fair market value and invalid business purposes. The catch, though, is that the CSC is still young and lean. As it staffs up and gains its footing, it can better keep up with the rapid pace of NIL deals, compliance issues, and complaints.

Second is the navigation of the direct-NIL cap and third-party supplementation. House established a cap for institutional NIL licensing deals — that is, those direct licensing deals between the university and the student-athlete. This cap is tied to, essentially, average industry revenue among schools in the biggest conferences. This cap was $20.5 million per institution for 2025–26, and it will grow year over year as revenue grows. But many large-conference institutions have a student-athlete base that, collectively, makes more than this when third-party licensing deals are factored in. These in particular are the deals that the CSC is trying to scrutinize for validity and fair market value. The past year has shown that institutions have been aggressive and successful in recruiting third-party partners. The next year will tell us more about how sustainable this competition is and will test whether predictions of donor and sponsor fatigue come true. We will also learn more about how regulatory scrutiny impacts universities’ strategies and how those strategies may align and diverge between the larger and smaller Division I institutions.

The third is Title IX. The language of Title IX is simple, prohibiting discrimination on the basis of sex for all federally funded institutions. In practice, however, the regulatory enforcement is much more nuanced than a simple 50-50 comparison of benefits and opportunities. Historical Title IX enforcement has focused on participation opportunities, scrutinizing equity and proportionality, with ample precedent to guide institutional decisions. But now, the focus shifts from participation to equity in terms of NIL opportunities and compensation. Different institutions are taking different approaches to Title IX compliance in their NIL regimes. These approaches may well be tested in the coming year.

Is all of this complicated? Sure. But all of this is unfolding amid a boom in the popularity and enthusiasm for college sports — from college football to softball to volleyball and beyond — which creates greater opportunities for both the institutions and their student-athletes. The future is uncertain, but all institutions will have to navigate it.•

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Bayh is a partner in the Indianapolis office of Barnes & Thornburg. He is co-chair of the firm’s higher education practice group and a former Division I student-athlete. He also is a son of former U.S. Sen. Birch Bayh, D-Indiana.