As an attorney specializing in college sports, Mit Winter monitors the daily political intrigue surrounding name, image and likeness compensation like few others.

With athletes often factoring NIL dollars into their college decisions, such legislated autonomy is an advantage for in-state schools, regardless of size or ambition.

Some of the benefits may be short-lived as college athletics, at least at the highest levels, edges toward sharing revenue and collectively bargaining with football and basketball players. But inertia wasn’t a viable option either.

Mascots from Virginia Commonwealth University, Virginia Tech, the University of Virginia and Old Dominion University join Gov. Glenn Youngkin (seated) in Richmond on Thursday for the signing of NIL legislation. VCU mascot Rodney the Ram is flanked by, from left, Del. Terry Austin, R-Botetourt, and state Sen. Aaron Rouse, D-Virginia Beach.

Winter works for the Kansas City firm of Kennyhertz Perry and helped Missouri legislators draft that state’s NIL law. His clients include unspecified colleges, athletes and related businesses, and at other firms he represented the Big 12, Conference USA and even the piñata that is the NCAA.

Winter believes the primary assets of Virginia’s bill, which becomes law July 1, are that it streamlines fundraising for NIL and allows athletes to be compensated for marketing their teams. The NCAA doesn’t permit those activities, but Virginia’s law says no governing association can penalize in-state schools or their athletes for following Virginia’s guidelines.

For example, if an athletic department in the state wants to use athletes and/or their images — think billboards — in a season-ticket campaign, they can compensate the athletes.

Prominent sports attorney Mit Winter played basketball at William & Mary from 1997-2001 and earned his law degree at the University of San Francisco.

The law “basically allows schools to pay athletes, whether they do it directly or through a third-party marketing agency that creates content for the university or its athletics teams,” Winter said. “It allows the athletes to be paid for appearing in that marketing content.

“Which makes a lot of sense to me because big-time college athletics at places like (Virginia) Tech and UVa, that’s really what the football and basketball teams are. They’re really marketing vehicles and donor-relations vehicles for the university.”

Tax benefits for donors

Third parties, often dubbed “collectives,” have become the standard method for financing NIL activities and adhering to NCAA policy that forbids schools from directly paying athletes. But come July 1, Virginia’s law will permit such compensation.

If universities and their governing boards decide not to bring NIL completely in-house — more on why they wouldn’t in a moment — the new law affords far more collaboration with collectives and allows athletic departments to raise funds for the collectives.

“Donors generally like giving money to the school more than they like giving money to collectives,” Winter said. “Collectives are new. They don’t necessarily trust them as much. They may not know the people running them. But they have, generally, that long-standing trust with the school.

“And when you’ve giving money to a school for athletics, you’re getting a tax deduction, which is an issue for collectives.”

Indeed, only some collectives have secured non-profit status from the IRS, and those that haven’t “probably won’t get it,” Winter said.

The changing dynamic between schools and collectives was evident this week, when the Virginia Athletics Foundation, the athletic department’s fundraising arm, launched the Sabre Society , an avenue for high-end donors to contribute directly to various areas, including the Cav Futures collective for NIL.

Reflecting the cutting-edge nature of Virginia's law, Mississippi and Nebraska subsequently liberalized their NIL laws, though without green-lighting school-to-athlete transactions.

A primary reason Virginia schools won’t immediately start direct NIL payments to athletes is Title IX, the federal statute that requires gender equity in athletics.

Would market-based NIL compensation pass NIL muster? Or would NIL funding, like athletics scholarships, have to resemble the male-female ratio of the general student body?

Title IX “doesn’t talk about market-based compensation or salaries for performance,” Winter said. “So it’s still an open question whether Title IX applies to that stuff ... But I think ultimately it’s going to be up to the (U.S.) Department of Education to issue some guidance, or it will have to be decided via litigation.”

And the last thing anyone in college athletics wants is more litigation.

Among the cases on everyone’s radar, including Winter’s, is House vs. the NCAA , a class-action antitrust suit brought by athletes who competed before the association approved third-party NIL payments. The trial is set to start in January, and damages could cost the NCAA, conferences and schools more than $3 billion combined.

Moreover, athletes at Dartmouth, the University of Southern California and Notre Dame have petitioned the National Labor Relations Board for employment status, a step the NCAA and its members staunchly resist.

For football and men’s and women’s basketball, the resistance may prove futile, especially with Congress unlikely to grant college sports antitrust protection.

“I think at some point people are going to get tired enough with how easy it is to transfer and the way the compensation system is working now,” Winter said. “They’ll say, 'OK, we can bring some order to this if we collectively bargain these rules.'”

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