In ruling for Deseret News, state records panel says Utah universities must disclose NIL contracts
The State Records Committee determined that a federal privacy law does not apply to athletes’ NIL contracts in ruling for the Deseret News.
A government body — perhaps for the first time — decided name, image and likeness contracts that college athletes submit to universities are not protected records under a federal education law.
The Utah State Records Committee further determined in a hearing Thursday that players give up an expectation of privacy when they sign NIL deals.
The seven-member panel unanimously granted the Deseret News’ appeal of five Division I public universities’ denial of requests for NIL contracts under Utah’s open records law.
The committee will issue an order within seven days requiring the schools to disclose the contracts, including an athlete’s name as well as the business providing compensation. Universities are allowed to redact personal information such as an athlete’s residence, phone number, email address and personal finances. It’s unclear whether personal finances includes the dollar value of the contract.
The schools can appeal the decision to the Utah state courts.
Jeff Hunt, an attorney for the Deseret News, said the ruling creates an important precedent that records held by public universities relating to NIL deals are presumptively public under Utah’s Government Records Access and Management Act or GRAMA.
“This will allow the public to better understand these deals and whether Utah’s universities are performing their public function in monitoring them for compliance with NCAA eligibility rules,” he said after the more-than-two-hour hearing that included the committee going into closed session to consult with its attorney before rendering a decision.
“You can’t have accountability without transparency, and the records committee ruling will allow for a lot more sunshine on this important issue,” Hunt said.
Most universities have policies and some states have laws requiring athletes to submit their NIL contracts to a compliance office for review — and in some cases, approval — before an athlete signs the agreement. Schools say they review the contracts for a number of reasons, including wanting to weed out bad actors who might be circling the program and to ensure the agreements don’t jeopardize players’ eligibility.
Earlier this year, the Deseret News requested NIL contracts and written agreements athletes submitted to Utah, Utah State, Weber State, Utah Valley and Southern Utah for at least the past year under GRAMA. All five denied the initial requests and the subsequent appeals.
Attorneys for the universities argued that GRAMA did not apply because NIL contracts are “education records” under the federal Family Education Rights and Privacy Act, or FERPA, and they thus are prohibited from disclosing them without the student’s consent. FERPA broadly defines education records as “records directly related to a student” and “maintained by an education agency.”
The attorneys also contended that release of the contracts would reveal private financial information and be an unwarranted invasion of privacy.
The state records committee disagreed, though members described it as a difficult and complex issue. The panel deemed NIL contracts subject to Utah’s open records law.
“I don’t think these are FERPA records,” said committee member Nancy Dean, citing a 2002 U.S. Supreme Court case, Owasso Independent School District v. Falvo, that narrowly applied FERPA to a certain small subset of records that are kept in a central institutional file such as a registrar’s office. “The records are not maintained in the registrar’s office in the student’s file; therefore, I don’t think they’re a FERPA record.”
Committee Chairman Kenneth Williams said athletes who sign NIL deals give up an expectation of privacy, other than information that could be used to harass them or reach them such as a phone number or address. He argued against allowing schools to redact from the records an athlete’s name or sport or position played as one committee member favored.
“I think the public has a right to know,” he said.
Dean added, “I think they’re selling their name, image and likeness, so I feel like their name is not private.”
Transparency has been an ongoing issue since college athletes were allowed to profit from the name, image and likeness starting in August 2020. Schools across the country, with few exceptions, have declined to release any information about the NIL deals their athletes submitted for approval.
Hunt called the Utah records committee decision a “big win” for transparency in college athletics. With the ruling, the public will have a much better understanding of how much money is flowing to college student-athletes and who is paying them.
Just Tuesday, in a Senate Judiciary Committee hearing, NCAA president Charlie Baker reiterated his call for more transparency.
“There are no publicly available numbers. The first thing we need there more than anything is some form of transparency around what people are actually getting. There are reporters who cover college sports who won’t write about NIL because they don’t believe anything anybody tells them,” he said.
Last year, ESPN asked 23 universities, including 20 from Power Five conferences, to release NIL-related information or data. It chose schools that reflect various regions, conferences, and state NIL and open records laws. The universities provided few to no records, Paula Lavigne and Dan Murphy reported last October.
In 2021, the Athens Banner-Herald sued the University of Georgia Athletic Association after it declined to release copies of the NIL disclosure forms that athletes are required to fill out, citing state and federal data privacy laws, including FERPA.
The court ruled in September 2022 that the NIL agreements do meet the threshold definition of “education records” because they pertain to particular students and are maintained by the institution, but allowed the case to move forward on the question of whether the records could be adequately redacted.
Also in 2021, WAFB-TV in Baton Rouge sued Louisiana State University, seeking endorsement contracts on file with the school’s athletic department, arguing the documents should be disclosed because Louisiana’s NIL law does not specifically provide an exception for public records. LSU countered that releasing the records would be a FERPA violation, and invade the athlete’s privacy and companies’ confidential business practices.
A state court judge ruled in the school’s favor, and the television station did not appeal.