Private Law Theory

ABSTRACT
Intercollegiate college sports are rapidly changing, reflecting a new legal paradigm. Pursuant to this paradigm, college athletes are now allowed to monetize the commercial value of their names, images, and likenesses, commonly referred to as NIL. Currently, the basis of NIL law is tort law, that is, the right of publicity. However, the right of publicity has limited transferability and severability which arguably impedes adding value of college athletes’ NIL. Consequently, this article argues that NIL law would be better grounded in property law, which allows for alienation, severability, and licensing. Such a change would accelerate the paradigm shift by which college athletes share in the wealth of college sports. Notwithstanding, this article’s importance goes beyond the rights of college athletes; the issue of whether NIL is property establishes a precedent for whether every person has a property interest in their NIL, capable of monetization and entitled to protection from exploitation.

This Article advances the thesis that NIL law should be based upon private property principles and features to maximize NIL benefits to college athletes. It develops that seminal, normative thesis through three tasks: (1) it analyzes and points out deficiencies in the current NIL law, (2) it proposes a model code solution that society, policymakers, and government should adopt to maximize college athletes’ NIL benefits, and (3) it presents several justifications for why the model code is a great idea and defends against critics of the solution. Consequently, this Article concludes that all levels of government should adopt and enact legalization that establishes NIL as the private property of college athletes.

Crusto, Mitchell F, What is Property?: A Libertarian Perspective of Name, Image, and Likeness (January 15, 2025), Loyola University New Orleans College of Law Research Paper No 2025-03; 16 Harvard Journal of Sports and Entertainment Law 59 (2025).