W. Keith Robinson

In 2020, the Supreme Court’s decision in NCAA v. Alston rocked college athletics by dismantling the NCAA’s amateurism model. In the wake of Alston, the ability of student-athletes to profit from their name, image, and likeness (NIL) has transformed college sports. Athletes are now recruited for their athletic ability and also viewed as economic actors. While the NCAA has revised its policies to allow for athlete compensation tied to NIL, the broader legal and regulatory terrain remains unstable. It is against this backdrop that Professor Mitchell Crusto’s thought-provoking article, What is Property?: A Libertarian Perspective of Name, Image, and Likeness, offers an important intervention.

A longtime leader in exploring how property law intersects with issues of race, class, and power, Professor Crusto turns his attention to the NIL revolution with great depth. His central claim is that NIL should be understood not as a right of publicity but as a form of property. That conceptual shift, he argues, would more effectively enable student-athletes to realize the economic value of their NIL while offering them stronger protection against exploitation.

Professor Crusto’s article could not be timelier. College athletics is undergoing a sea change. From the expansion of the College Football Playoff to ongoing efforts to enlarge the NCAA men’s and women’s basketball tournaments, college sports is being reshaped. Yet amid the chaos, Congress has failed to enact a national NIL framework. Instead, states have filled the vacuum with a patchwork of legislation which is often designed less to protect athletes than to give their states’ colleges and universities a competitive edge in recruiting.

Professor Crusto’s article is valuable on multiple levels. It provides a comprehensive and accessible introduction to NIL law. More importantly, it advances a compelling argument for grounding NIL rights in property rather than tort, explaining how such a move would better promote autonomy, dignity, and economic justice for student-athletes. The article also includes a proposed legislative model that would recognize and protect NIL as property. Ultimately, what makes his article so powerful is its focus on athletes because they are the ones that generate the value at the heart of college sports.

The article grounds its argument in a critique of the current legal framework surrounding NIL. Current NIL doctrine is rooted in tort law, specifically the common law right of publicity. As Professor Crusto explains, the right of publicity emerged from the broader right to privacy, a doctrine with varying definitions. That history raises concerns about whether the right of publicity can bear the full weight of the modern NIL economy.

One of the article’s key criticisms is that few states have codified the right of publicity, leaving it vulnerable to inconsistency. Even where it exists, the right tends to lack transferability which is one of the most critical features of property law. This makes it poorly suited for the commercial realities of NIL licensing. Without the ability to transfer or assign rights, NIL becomes a less useful asset. The article notes that under a right of publicity framework, NIL protections are also largely reactive. That is, they arise only when someone misappropriates an athlete’s likeness without permission. In contrast, property rights are proactive. They give the owner affirmative control over use, transfer, and exclusion.

Professor Crusto argues that grounding NIL in property law better serves the legal and economic interests of athletes. A property-based framework would allow student-athletes to license their NIL rights to third parties, who in turn could enforce those rights against infringers. It would also make clear that NIL can be transferred, inherited, or securitized. These are key to enabling athletes to participate in the same market that already governs the institutions profiting from their labor and identity. Tellingly, Professor Crusto reports that only one state, Texas, has enacted legislation addressing the descendability of general NIL rights. That statutory silence underscores the need for a more comprehensive legal theory that views NIL as a form of property.

In turn, Professor Crusto articulates three core justifications for treating NIL as property, grounding his claims in constitutional theory, economic fairness, and public policy. First, Professor Crusto roots his argument in foundational constitutional principles. He contends that NIL is a modern extension of private property embraced by the Framers and includes not only physical assets but also the right in one’s person or persona. He draws an analogy to intellectual property, noting that just as federal law protects creations of the mind, so too should it protect the attributes of identity through which individuals generate value. Under this view, the right to one’s NIL flows directly from a deeper constitutional commitment to autonomy and ownership.

Second, Professor Crusto contends that treating NIL as property is a more effective mechanism for maximizing economic value and guarding against exploitation. Property law offers tools that tort law does not: the ability to license, transfer, and inherit rights; to use NIL as collateral; and to incorporate NIL into estate planning and intergenerational wealth strategies to name a few. These are concrete advantages that could materially improve the financial futures of college athletes.

Third, Professor Crusto argues that treating NIL as property would advance several public policy goals. Most notably, it would provide stronger safeguards for athletes, many of whom are students of color or from economically marginalized communities. In addition, this framework could help address broader structural inequities. For example, empowering younger individuals to treat NIL as a transferable, inheritable asset may contribute, however modestly, to narrowing the generational wealth gap.

In sum, Professor Crusto has offered a thoughtful and timely intervention into a complex and rapidly evolving legal landscape. His article clearly lays out the current state of college athletics, explains what NIL is and how it operates under existing legal frameworks, and carefully diagnoses the limitations of grounding NIL rights in the tort of right of publicity. Further, it advances a compelling case for reimagining NIL through the lens of property law and explains the practical and policy benefits that would follow.

This is a work that will resonate across multiple audiences. It could be assigned just as easily in a first-year Property course as in a Sports Law seminar. It offers value to scholars interested in doctrinal development, to policymakers looking for implementable reforms, and to athletes and advocates working on the front lines of NIL equity. Professor Crusto has contributed to an important ongoing conversation by clarifying the rights at stake and offering a solution for how to protect them. Anyone interested in the future of college athletics and the rights of college athletes would do well to read this article.