A Utah Senate committee Wednesday advanced the state’s first attempt to regulate college athletes’ use of their name, image and likeness. But at least one senator doesn’t intend to support it when it reaches the Senate floor.

“I don’t like NIL. I don’t like the lack of transparency. I also don’t like the fact that we’ve put ourselves at a competitive disadvantage with others. I think we’re in a crappy position if we move forward. I think we’re in a crappy position if we don’t move forward,” Sen. Mike McKell, R-Spanish Fork, said in a Senate Education Committee hearing.

“I don’t think there’s a good answer to NIL. I think it’s created a bunch of problems where we don’t focus on education and academics, and we spend all of our time focusing on football because that’s where the money is.”

Though he said there’s a “strong likelihood” he will vote against HB202 on the Senate floor, McKell said it’s something his colleagues should decide, adding “this is a big policy.”

He joined the rest of the committee in unanimously voting to move the bill forward. The House approved the measure earlier this month.

Senate Minority Whip Kathleen Riebe, D-Salt Lake City, said as long as the Utah bill isn’t the “most aggressive” one in the country, she would “tepidly” support it. About 30 states have passed NIL laws.

Utah House clears path to keep college athletes’ NIL deals private

The legislation would require athletes to submit any contract over $600 in value to the university. The school then must provide the athlete written acknowledgment regarding whether the contract conflicts with university policies or provisions of the proposed law.

The law also would prohibit college athletes from promoting tobacco and e-cigarettes, vaping products, alcohol, a seller or dispenser of drugs including marijuana, antibiotics and steroids, gambling or betting, sexually-oriented businesses and firearms they could not legally own.

The bill further states that the agreements, along with any other correspondence or material related to them, would not be subject to Utah’s Government Records Access and Management Act, or GRAMA.

If the bill becomes law, it would take effect May 1, 2024 and apply to NIL agreements created before that date as well as those in the future.

Revamped Utah bill aims to exempt NIL agreements from open records law

Bill sponsor Rep. Jordan Teuscher, R-South Jordan, told the committee Utah universities would be an “outlier” and at a “competitive disadvantage” with other schools if athletes’ NIL agreements were public records.

“There isn’t another state that has allowed this to be considered a public record,” he said.

Teuscher pointed to a NCAA policy starting Aug. 1 requiring college athletes to disclose to their schools information related to NIL agreements exceeding $600 in value. It calls for schools to provide the NCAA deidentified NIL data at least twice a year. The NCAA will aggregate the information into a database to help athletes better understand NIL and schools make informed NIL-related policy.

Inside the order requiring Utah universities to release NIL contracts

The Utah Media Coalition, a consortium of news outlets that works to keep government records open, opposes the bill because it removes any public oversight or transparency of how universities regulate NIL.

“The universities all have compliance officers that review the contracts and make sure that it’s not pay-to-play, not pay-to-stay, that the universities aren’t paying the athletes to come,” Jeff Hunt, an attorney representing the coalition, told the committee. “Usually when we have a government compliance function, there’s some public oversight.”

Hunt suggests schools could release information that doesn’t identify the athletes but does provide the business providing the compensation, the services to be provided, the amount of the agreement and the sport. He said people shouldn’t have to wait on the NCAA to release that type of information.

“It would just provide some demographic data and give the public some insight into what’s happening with these NIL deals and who’s benefiting from them,” he said.

Hunt said public access to redacted NIL-related records would not put the universities at a competitive disadvantage. “It would actually make Utah a pioneer in this field instead of an outlier,” he said.

How NIL is transforming college sports

The Deseret News is currently in litigation with the University of Utah, Utah State, Weber State, Utah Valley and Southern Utah universities over whether NIL contracts are public records. Hunt represents the news organization in the case.

Last October, the State Records Committee unanimously ruled that NIL contracts are public records and ordered the schools to release them. The universities challenged the decision in court.

“Considering the public interest in college sports, the fandom and the immense revenue our public institutions capture from athletics, it’s apparent to us that a university compliance officer reviewing these contracts to ensure players’ eligibility under the rules is indeed conducting the public’s business,” according to the committee.

The Utah Transparency Project, a joint enterprise among Utah media to provide real-time assessments of pending legislation and whether a law would make it easier or harder to know what’s going on in government, gave the bill a “Closed Door” rating.