College athletes could be receiving direct payments from their schools as early as 2025. And the NCAA likely will continue to do everything in its power to prevent them from being deemed university employees, whose salaries are typically a matter of public record.

But whether players are considered employed by a university or not, will the direct payments schools make to them be public information?

“That is a great question,” said Dave Cuillier, director of the Joseph L. Brechner Freedom of Information Project at the University of Florida.

“Certainly, in most states, payments by government agencies to anyone are subject to public records laws, whether faculty, staff or student workers. That wouldn’t include private universities, but payments from public universities to student athletes should be available for anyone to see. That is, of course, if the legislatures don’t pass an exemption keeping it secret,” he told the Deseret News in an email.

NCAA’s proposed pay-for-play model

Last week, the NCAA and its five major conferences agreed to a landmark $2.8 billion settlement in several antitrust suits that would create a revenue-sharing model allowing schools to directly pay their athletes. The agreement still requires approval by a federal judge and plaintiffs will have the opportunity to opt out and pursue claims individually or challenge the terms of the agreement.

Under the new compensation plan, schools would be allowed but not required to set aside up to $21 million a year in revenue to share with athletes, though as revenue goes up, so could the cap. Athletes in all sports would be eligible for payments and schools would decide how to distribute the money among the sports on campus.

What financial impact could new NCAA settlement have on Utah?

How much, if any, transparency schools would provide or might be required to provide on how they divvy up the money and pay athletes is unclear.

“That’s a complicated question because it depends on how the payments are structured. If the state universities are paying the athletes directly, then the payments would be similar to compensation paid to government employees or contractors, which are public records under (Utah’s) Government Records Access and Management Act. Same with how the universities divide up the money — that is information of public concern,” said Jeff Hunt, a First Amendment lawyer with Parr Brown Gee & Loveless in Salt Lake City.

“If, however, they tried to structure the payments to the athletes as NIL deals, then current Utah law would prevent the public from knowing about those payments, despite the significant public interest in that information.”

The proposed pay-for-play plan raises all kinds of questions:

  • Football, by far, brings in the most money, so does that mean football players would get larger payments?
  • Would payments be equally distributed among members of the football team?
  • Would star players get bigger shares?
  • How much would athletes in nonrevenue sports receive?
  • How does Title IX come into play?
  • Does the revenue need to be shared equally between men’s and women’s sports, male and female athletes?

Will revenue-sharing information be public?

Former BYU athletic director Val Hale said the key to how much schools would have to reveal about their direct payments is whether college athletes are considered employees. If they are, he said he suspects they would fall under the same guidelines as other public employees. If they’re not, schools would claim the same exemptions to public records laws as they do with NIL contracts, he said.

“I can see both sides of the picture. I can totally understand why they don’t want that information public. But I can understand why the public wants the information,” Hale said.

“There are arguments both ways, and my guess is that it will probably be settled in legislatures around the country and maybe even Congress will step in and do something. I’d be surprised but they might. This is uncharted territory for intercollegiate athletics. There are a lot of questions that remain unanswered at this point.”

What this former AD said about historic NCAA settlement, including the challenges it brings

And perhaps the biggest question is whether college athletes will become university employees.

“I don’t know how you wouldn’t call them employees at this point,” Adam Hoffer, director of Excise Tax Policy at the Tax Foundation and a former professor of economics at the University of Wisconsin-La Crosse, told The New York Times. “The NCAA is going to look more and more like a professional league than it ever has before.”

University of Notre Dame President Rev. John I. Jenkins called the settlement “undesirable,” promising only temporary stability but necessary to avoid the bankruptcy of college athletics. At the same time, he wants Congress to ensure college athletes are not employees.

“To save the great American institution of college sports, Congress must pass legislation that will preempt the current patchwork of state laws; establish that our athletes are not employees, but students seeking college degrees; and provide protection from further anti-trust lawsuits that will allow colleges to make and enforce rules that will protect our student-athletes and help ensure competitive equity among our teams,” he said in a statement last week.

NIL and legal challenges

At least 30 states have passed laws related to college athletes profiting from the use of their name, image and likeness, including some that expressly state players are not university employees. Utah approved an NIL law earlier this year requiring college athletes to submit any agreement over $600 in value to their university but exempting all NIL contracts — past and future — from the state’s Government Records Access and Management Act, or GRAMA. A provision that athletes are not considered employees of the institution based on their participation in athletics was stripped from the final version.

Utah passes law to shield college athlete NIL deals from public scrutiny

The Utah law came in response to a Deseret News effort to obtain NIL agreements athletes submitted to five Division I universities — University of Utah, Utah State, Weber State, Utah Valley and Southern Utah — through GRAMA. The schools refused to provide the contracts, calling them “education records” under the federal Family Education Rights and Privacy Act and maintained they are not subject to Utah’s open records law.

The Deseret News appealed the universities’ decision to the State Records Committee. Last October, the seven-member panel unanimously ruled that NIL contracts are public records and ordered the schools to release them. The universities challenged the decision in court. The case is ongoing. Hunt represents the Deseret News in the litigation.

Cuillier said he doesn’t believe the FERPA argument would hold up if schools start making direct payments to athletes.


“FERPA couldn’t be applied because salaries, contracts and other payments shouldn’t be considered ‘educational records,’ like grades or test scores,” he said.

Inside the order requiring Utah universities to release NIL contracts

The Deseret News argued in the NIL case that contracts become public records when universities require athletes to submit the agreements for review. Schools review the contracts for a number of reasons, including wanting to weed out bad actors and to ensure the agreements don’t jeopardize players’ eligibility. As long as public universities regulate the NIL activity of college athletes to ensure compliance with NCAA rules, the public has an interest in monitoring that compliance function, the news outlet argued. The Deseret News also contended that the lack of transparency could have Title IX implications. Having access to NIL contracts could reveal whether schools are disproportionately steering NIL deals to male athletes or investing disproportionate resources in marketing male athletes.

In passing the Utah NIL law, state lawmakers argued that making athletes’ contracts public would put schools in the state at a competitive disadvantage in recruiting top talent.

Those same arguments on both sides would likely come up if states respond to the proposed NCAA compensation model with new laws as they have with NIL.

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