Legal Defense Strategies | The Legal Edge: NIL
Issue Date: February 6, 2026 | Issue #32
Welcome back to The Legal Edge.
CBAs are the talk of the town, but almost no one is honest about how structurally hard that actually is in college sports.
A recent conversation with a NIL leader reminded me that the Collective Bargaining Agreement (CBA) complexity starts long before anyone sits at a bargaining table.
We are chasing a "professional" solution for a system that was never designed to hold it.
Today, we go deep into the friction between amateur tradition and industrial labor.
Sincerely,
Rebekah Ballard, 3L
The Price of the Arena
Before we dive into the ledger, let’s ground this in the reality of labor negotiations. As David Stern, the legendary NBA Commissioner, once said:
"We need a system where all of our teams have the opportunity to compete and to make a few dollars. That's not a bad desire for collective bargaining for a sports league, and it's great for our fans."
The problem? In college sports, we haven't even agreed on who is allowed to sit at the table, let alone how to share the "few dollars."
1. Why College Sports are a Terrible “Fit” for Traditional CBAs
The American collegiate model is a global outlier. Unlike the NFL or NBA, centralized leagues with 32 owners, college sports is a fragmented galaxy of 134 FBS schools, dozens of conferences, media partners, and the now-pivotal College Sports Commission (CSC).
The Identity Crisis: In a pro league, the employer is clear. In college, we are still stuck on the first page: Who is the employer? Is it the university? The conference? A private entity? Without an "Employer of Record," you can't have a "Bargaining Unit."
2. The Pre‑Bargaining Headaches
Even if we agreed to bargain tomorrow, 2026 presents concrete hurdles that would stall any negotiation before the first offer is made:
Defining the Unit: Should football negotiate separately? If the Big Ten bargains as one unit, how does a public school in Michigan (subject to state labor laws) align with a private school like Northwestern?
The Turnover Trap: Traditional unions represent decade-long workforces. College athletes have a 4-6 year eligibility window. By the time a CBA is ratified, the original "unit" that voted for it may have graduated.
State Law Conflicts: We are operating in a multi-state system with conflicting labor laws. In several large college-athletics states, public-sector collective bargaining for student-athletes is either not addressed or explicitly unlawful. A national agreement is legally impossible without Congressional intervention (like the stalled SCORE Act).
3. NIL + CBA: Where They Clash
A CBA doesn't just "solve" NIL; it likely replaces or heavily regulates it.
Consolidated Income: Groups like Athletes.org propose a single "Athlete Services Agreement" that rolls NIL and revenue-share into one payment. This simplifies things for schools but complicates things for athletes who lose the ability to negotiate private, uncapped market deals.
The Title IX Overlay: Revenue sharing is already under fire for disparately benefiting male-dominated sports. Over 90% of current settlement funds are estimated to go to football and men’s basketball. A CBA that locks in these disparities could trigger a wave of sex discrimination lawsuits that even a union contract can't shield.
4. Staying Ahead
The schools that survive this transition are treating CBA talk as a forecasting tool, not a crisis response. Staying ahead looks like this:
Mapping Units Now: Forward-thinking ADs are already inventorying which sport-specific associations are gaining traction on their campus.
The "Give" List: Schools are studying past antitrust settlements to see where consensus already exists on health care, IP rights, and scholarships to prepare their "first offer."
Standardizing Baseline Terms: Moving toward a standardized contract across the conference to reduce the "patchwork" of school-specific agreements that create recruitment friction.
What You’ll Be Watching in 2026
NIL Go Enforcement: The CSC’s centralized clearinghouse is now reviewing all deals over $600 for "Fair Market Value." This is the first step toward the "salary cap circumvention" mechanisms found in pro CBAs.
Quasi-Union Structures: Watch for Athletes.org and other player associations seeking formal recognition from conferences, bypassing the NCAA entirely.
Conference-Level Revenue Sharing: Implementation details from the House settlement will be the first "pseudo-CBA" we see in action.
Final thought: If a true CBA era comes to college sports, it will be built on decisions schools are making quietly in 2026. However, that true CBA won’t be created anytime soon.
NIL Quick Hits
LA Bowl Game is Gone
The LA Bowl at SoFi Stadium has been discontinued after five seasons, with Washington’s 2025 win over Boise State marking its final game. Its closure reduces the expected number of bowl games after the 2026 season to 40 and highlights broader uncertainty around lower-tier bowls amid playoff expansion, player opt-outs, and programs declining bids.
Read the full story here: https://www.cbssports.com/college-football/news/la-bowl-canceled-college-football-bowl-games-playoff/
Confidential Student Athlete NIL Info
New Mexico House Bill 335 (HB 335) from the 2026 Regular Session establishes confidentiality protections for student-athletes' NIL compensation records. It prohibits schools, athletic associations, and state agencies from disclosing or making available for public inspection any documents related to a student-athlete's name, image, likeness, or athletic reputation deals.
Read the full story here: https://www.billtrack50.com/billdetail/1963680
The Breakdown
A conference, let's call it the "Premier Four,” decides to move toward a CBA to gain antitrust immunity. They attempt to form a single bargaining unit for all football players.
Public vs. Private: The private schools in the conference fall under the National Labor Relations Board (NLRB), which has signaled a pro-employee stance.
The "Right-to-Work" Wall: The public schools in the same conference are located in states where state law prohibits public employees (which athletes would be) from collective bargaining.
The Result: The conference can’t sign a "uniform" CBA. Half the schools are legally barred from participating, creating a "two-tier" system where some athletes have union protections and others don't. This inequality immediately triggers a Title IX lawsuit from female athletes and a fresh antitrust claim from the non-unionized players.
Legal Lingo Explained
What is ‘Non-Statutory Labor Exemption’?
The legal shield that protects pro leagues from antitrust lawsuits when they agree to things like salary caps, but it only applies if the terms are collectively bargained with a union.
Your Toolkit
Athlete Pro Tip
If you want the benefits of an employee, you must have the records of one. Log your mandatory hours now, if a CBA comes, your historical data is your leverage.
What’s Next?
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Disclaimer: This newsletter provides educational insights and general information related to the legal side of Name, Image, and Likeness (NIL). It does not constitute legal, financial, or professional advice, and should not be relied upon as such. This content is for informational purposes only, and you should always consult with a qualified professionals for advice tailored to your specific situation.
NIL laws are constantly evolving, and the information provided might not be the most current at all times.