A new version of a bill to regulate name, image and likeness in Utah would exempt college athletes’ NIL agreements submitted to public universities from the state’s open records law, closing them off to any public scrutiny.
HB202 requires athletes to submit any NIL 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.
It 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.
That provision would shield access to all records, including how many deals were rejected by universities and for what reasons, as well as demographic data about which athletes and sports are getting deals and whether they are men or women. It would also preclude access to NIL records even if the names of the athletes were redacted.
Jeff Hunt, a Salt Lake media law and First Amendment attorney, said the legislation would move Utah in the wrong direction on public oversight of college athletic programs.
“As long as public universities regulate the NIL activity of college athletes to ensure compliance with NCAA rules, then the public has an interest in monitoring that compliance function. How can the public have any meaningful oversight if all information concerning NIL activity is kept from the public?” he said.
Rep. Jordan Teuscher, R-South Jordan, earlier proposed a more comprehensive NIL bill but universities in the state balked at much of its language. The latest draft, he said, includes issues they could agree on, including exempting NIL contracts from the open records law.
“They feel like if they have to disclose these agreements it would put them at a disadvantage to other universities across the nation,” he said.
Teuscher said there are good arguments on both sides.
“I’m a little more persuaded by the idea that they should be protected records,” he said. “But I think it is a worthwhile discussion for us to have at the Legislature.”
The Deseret News is currently in litigation with the University of Utah and Utah State, Weber State, Utah Valley and Southern Utah universities over whether NIL contracts are public records. Hunt represents the news outlet in the court case.
Hunt said the public has a compelling interest in understanding how much money is flowing to college athletes, who is paying them and how the universities are monitoring compliance with NCAA eligibility rules.
“This bill would put all that information in a black box, off limits to the public,” he said.
Teuscher said the Legislature, not the courts, should interpret GRAMA on the issue.
“That litigation is based on what our legislation on government records allows for,” he said. “Who better than the Legislature to tell the courts exactly what we meant?”
Last summer, the Deseret News requested NIL contracts and written agreements athletes submitted to the five Division I schools for at least the past year under the state GRAMA. All five denied the initial requests and the subsequent appeals, which asked the schools for redacted documents.
The schools maintain that NIL contracts are “education records” and therefore protected under the federal Family Education Rights and Privacy Act, or FERPA, and are not subject to GRAMA. FERPA broadly defines education records as “records directly related to a student” and “maintained by an education agency.”
Last October, the State Records Committee disagreed with the universities and unanimously ruled that NIL contracts are not “education records” and ordered them to release the contracts. The seven-member panel concluded that NIL agreements become public records under state law when they are shared with a university.
“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 universities are challenging the committee’s ruling in state court.
Teuscher said the records committee made some good arguments but that they are based on assumptions in the law.
“I’m just really looking forward to the debate,” he said. “I think they’ll be appealing from both sides and we’ll see which arguments win out the day.”
Senate President Stuart Adams, R-Layton, told reporters Tuesday that to him Teuscher’s bill isn’t about disclosing or not disclosing NIL contracts. And, he said, even though it might be good policy for the records to be open, it would put Utah at a competitive disadvantage in college sports.
“It’s a matter of trying to compete with other states, and I think we’re going to compete hard to try to get the best athletes here and we don’t want to discourage them from coming to Utah for some of the things that might do that,” he said.
Adams said if he were a member of the Utah Media Coalition, a consortium of news outlets that works to keep government records open, he might oppose the legislation.
“But for me, it’s a matter of competing,” he said. “When you’re an athlete and you have to come to Utah and disclose everything you do, and you can go to Nevada and not do it, it puts it at a competitive disadvantage to attract athletes.”
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 HB202 a “Closed Door” rating.
“When information is kept secret there is a high likelihood of mismanagement at best, and corruption at worst. We are also very concerned about female athletes getting the same treatment and opportunity as male athletes and don’t believe there is any competitive disadvantage to being honest, honorable and above board. Indeed, Utah again can lead the way on providing transparency when hundreds of thousands, if not millions of dollars are at play,” said Doug Wilks, Deseret News executive editor.
As of July 1, 2021, college athletes were permitted to profit from the use of their name, likeness and image. Those activities, which may include endorsing products, appearing in commercials, signing autographs and monetizing social media platforms, must be consistent with state NIL laws or, in their absence, university policies.
According to NCAA guidelines, NIL opportunities may not be used as a recruiting inducement or as pay-for-play. Deals must be based on a true quid pro quo arrangement — meaning the athlete must do some work, whether it be a social media post, public appearance or TV commercial. It prohibits deals that are contingent upon an athlete’s enrollment at a certain school or upon athletic performance.
Many college athletics administrators and coaches have urged Congress to pass a standards NIL and preempt the hodgepodge of state laws. Various bills have yet to gain any traction.
While states across the country have passed NIL laws, Utah took a wait-and-see approach. Teuscher’s bill marks the first time Utah lawmakers have attempted to address the issue.
The new bill is a complete overhaul of the one Teuscher initially introduced. He said he expected it to change significantly after universities objected to some of the language in the measure.
The original legislation spelled out what college athletes, institutions, collectives and booster clubs can and can’t do regarding NIL. It expressly prohibited pay-for-play, banned endorsing certain products such as tobacco and made clear that college athletes are not employees of their schools.
With the exception of prohibiting athletes from promoting certain products, all of that language was pared from the latest version of HB202. Specifically, the law would ban players from promoting tobacco and e-cigarettes, vaping products, alcohol, a seller of dispenser of drugs, including marijuana, antibiotics and steroids, gambling or betting, sexually-oriented and firearms they could not legally own.
The bill was sent to the House Education Committee for a public hearing but a date has yet to be scheduled.