Mit Winter is a sports law attorney at Kennyhertz Perry and is a former Division I basketball player, so he has extensive experience in the college sports world. Today, he talked with us about all things NIL.

How and why did you get into the NIL world?

I was a former Division I basketball player at the College of William & Mary and then I went to law school at the University of San Francisco. When I got out of law school, I was lucky enough to work at a law firm and we started doing some sports-related stuff…In 2019, I moved to my current firm and that was around the time when you could tell NIL was going to become a thing, the rules were going to change, and athletes were going to be able to start monetizing their NILs in the near future. I already had the background as a former college athlete and all of the legal stuff I had previously worked on so it was an easy transition into the NIL world…When July 2021 hit and the rules did change, I was just positioned well to move into that world.

Can you talk about how collectives have impacted the recruiting world?

Money coming from NIL collectives is a huge factor in recruiting, and it's not just football and basketball. Right now, about 80% of dollars flowing to college athletes via NIL is coming from collectives. The other world of NIL is what a lot of people call “true NIL.” This is your brand deal – which is about 20% of dollars flowing to athletes. 

Collectives are a very important part of recruiting, it is going to come up in recruiting meetings with coaches and athletes.

Now, after an injunction that was entered in the Tennessee vs. NCAA case, collectives can be out there talking to recruits and offering them specific NIL deals and an inducement to go to a specific school. Before that, there was an NCAA rule that said that NIL deals could not be recruiting inducements, which wasn't always being followed. Now that it isn't prohibited at all, it has become a more important factor with collectives out there offering specific deals to athletes – whether that's high school athletes or athletes that are in the transfer portal. 

How important should NIL be to top recruits?

That depends on the specific athlete or recruit and how important getting some NIL compensation is for them. For some, it probably isn't important at all and for others, it might be pretty high up on their list. For most high school athletes or athletes in the transfer portal, it's going to be on your list of factors. 

What are some NIL resources athletes should look for in a school?

There are a lot of schools now that have in-house employees who just focus on NIL-related things to help athletes navigate that process. Some schools also offer different types of programs to help athletes who need help reading the contract that they are offered. 

What are some red flags that athletes need to watch out for during their recruiting process surrounding NIL?

Most college students are not going to be familiar with the terms in a contract. I think it is really important to have someone that you trust knows what they are talking about and is familiar with this stuff to review this agreement with you. 

There are lots of important things that could get an athlete into trouble with the deal that they sign…How long does the agreement last? What kind of intellectual property rights am I giving up? What is the business going to be able to do with my NIL? 

How has NIL affected the transfer portal?

It's almost been like a perfect storm. The transfer portal and NIL came into the world at the same time. In addition to the transfer portal, now athletes can transfer every year and play right away because of another court case…This has almost created annual free agency in college athletics. There are definitely some athletes who go into the portal to see what kind of offers they would get from some collectives. If their goal is to see how much money they can make, it's smart to do that. For a lot of college athletes, this is the best time for them to monetize their athletic talents. 

How can athletes at smaller schools take advantage of NIL?

There are definitely athletes at the DII, DIII, and NAIA levels that have NIL deals, but there aren't as many collectives. At that level, it's more about trying to brand yourself and putting yourself out there. It might take a little more effort on the athlete's part if you're not at one of the big P5 schools playing basketball or football. 

What is something that athletes should know before getting involved in the NIL world?

Good or bad, social media definitely plays a big part in that. Try to build your brand, try to build a good social media platform for yourself. Engage with the people that follow you, because that's what brands are looking for. 

If you are an athlete that is being offered different deals from collectives, I think it is important to have someone help you navigate that world. Generally, you are going to be offered contracts and some of the contracts can be pretty detailed and long. You don't necessarily need an agent, but just have someone who can help you navigate that process. 

The Dartmouth basketball team recently voted to unionize – can you talk to us about your thoughts on this case and how will impact the NCAA?

Before the Dartmouth basketball players unionized, they had to be declared employees of the university. They had to file a petition with the National Labor Relations Board. Once they did that, the NLRB regional office said “Yes, Dartmouth men's basketball, you are employees of the university based on our legal analysis.” This gave the basketball team the ability to vote to unionize. Now, they are represented by a preexisting union in New Hampshire. Dartmouth is now supposed to collectives bargain with the union and the players over the terms of their employment. How much are they going to get paid? What are their working conditions going to be like?

Dartmouth has said, “No, we don't think you are employees even though the NRLB said that. We aren't going to collectively bargain with you.” It is going to have to go through the legal process. It will probably be a couple of years before we have a final answer on whether some college athletes are going to be employees. 

What services do you provide at Kennyhertz Perry? How can athletes contact you if they have any questions?

I have done things from all different angles in the NIL world so I am very familiar with NIL agreements. The best way to reach out to me is on Twitter (X now) @WinterSportsLaw and my email address is [email protected].