What follows is a conversation with Dan Cohen, a partner at Barnes and Thornberg, who leads the firm’s NIL discipline.
Question: How has your firm adapted its sports law practice to address the rapid evolution of NIL regulations and enforcement at both the state and NCAA levels?
Answer: Fortunately, when college athletics entered the NIL era a few years ago, we already had a nationwide college athletics practice, focusing on athletics economics and proactively representing university athletics departments in Title IX compliance matters. So, as the industry began pivoting towards NIL opportunities a few years ago, we were uniquely positioned to understand what equitable publicity entailed—promoting collegiate athletes into the marketplace for them to receive visibility, and potentially payments, for their NIL.
Today, we are proud to advise many universities on legal and equitable aspects of their House and NIL programs. Over the past year, we’ve built entire, comprehensive, legally compliant House implementation structures for over two dozen athletics departments. We have consulted for many others at the highest level on aspects of their House implementation. As a national firm, we were able to assess the many legal risks presented by these new structures—antitrust, employment, international law, Title IX, tax, and of course, intellectual property. As a result, we’re confident that our NIL contracts and roster management structures can better protect universities from legal risks across a number of different areas of the law.
Q: What are the most common legal risks or pitfalls you see for universities, collectives, or athletes in NIL deals today, and how do you help clients mitigate them?
A: Many new arrivals to this space miss the significant employment and Title IX legal risks that schools can create under their House programs. Our approach is thoughtful and industry-based. We understand that our clients are not professional teams. Pro models, while informative, ultimately will fail for universities with broad-based athletics programs, particularly public universities, that are subject to differing laws and obligations than for-profit, single-sport pro teams. Athletic departments’ Title IX obligations are at the university level, and they do not exempt individual teams. Similarly, it is highly unlikely that the employment ramifications of collective bargaining would stop at football and basketball, and so that pathway may lead to employment (and paying minimum wage) for every walk-on across every team. One of the common pitfalls we see is too much focus on an individual team, which could overlook important, department-wide impacts that may flow from isolated, team-based decisions. The legal approach should consider the entire athletics enterprise.
Even the term “revenue sharing” leads away from the institutional brand promotion tenets of the House settlement and leads closer to an employment model. Schools should have detailed valuation models—tied to institutional visibility and licensing value, not just revenue—to support and justify their institutional NIL payment structures.
Q: How is your firm advising clients on the intersection of NIL with emerging issues like employment status, revenue sharing, and antitrust concerns?
A: Cautiously and informedly, with a full-service approach. While we’re prohibited from revealing how we advise specific clients, we are proud that our approach has traction, as we have been trusted to advise university athletics departments across 37 states and Washington D.C., including major research institutions in 29 of those states. We’re active with drafting institutional and third-party NIL contracts (and re-drafting them as agents’ demands change with each new transfer portal), drafting NIL policies for athletics departments, advising universities on their House programs, and representing universities in NIL litigation. We work alongside ADs, GCs, athletics administrators, and university administrators to implement legal and equitable aspects of their House and NIL programs.
Q: What differentiates your firm’s NIL practice from others in the market, particularly in terms of services, client base, or approach to compliance and deal structuring?
A: Our deep experience in intercollegiate athletics, focus on client service, and belief in the industry’s underlying goal of empowerment through education—on and off the field, track, or court—help us understand how to creatively but staunchly protect the intercollegiate model as it rapidly evolves. We have been deeply invested in intercollegiate athletics for decades and understand there is an entire ecosystem beyond today’s NIL headlines.
And we love to cheer for our clients. We are proud to represent the schools that accounted for 38 national championship teams in 2024-2025 across Divisions I, II, and III.
Dan Cohen is the Co-Chair of Barnes & Thornburg’s Higher Education Team. He is based in Atlanta and can be reached at DCohen@BTLaw.com.
