Eyes Off Texas: NIL Law Latest to Restrict Public Access to Records
It’s not just the peepers of NCAA investigators that the Lone Star State wants to keep away from its college athlete’s endorsement agreements. It’s the public’s, as well.
On Saturday, Texas Gov. Greg Abbott signed into law a sweeping name, image and likeness bill that effectively handcuffs the NCAA and college athletic conferences from taking any action against universities in his state that are alleged to have committed NIL-related violations.
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The new measure, set to take effect July 1, is the latest and arguably most significant of the recent batch of state-based NIL provisions designed to constrain the NCAA’s enforcement arm.
Buried in the text of House Bill 2804, however, is an equally sweeping public records exemption for any athlete NIL “information written, produced, collected, assembled or maintained by an institution.” With this broad non-disclosure language, Texas becomes the sixth—and, arguably, most significant—state to explicitly forbid universities from releasing NIL documents in response to public records requests. It follows on the heels of Connecticut, Kentucky, Nebraska, Louisiana and Missouri taking similar actions with their NIL bills.
“This is just one more broad exception to the Texas Public Information Act that makes the Act anti-transparency,” said Tom Leatherbury, the director of the First Amendment Clinic at SMU Law School. “It was passed to cater to special interests that seek to shield the big business of college sports from public scrutiny. It runs counter to the 2019 laws that made government contracting information more accessible. It remains to be seen whether this law will also be used to hide arrangements that athletic departments have with sports management companies.”
Texas’ new law was originally drafted by state Rep. John Kuempel, the chair of the legislature’s higher education committee. In a phone interview, Kuempel’s chief of staff, Brittney Madden, suggested that the legislator had not critically engaged about the specific issue of disclosure in his bill, but instead relied on the language in other states’ bills and the advice of university stakeholders. Madden cited Texas A&M deputy general counsel Brooks Moore as a key contributor to the process. Moore did not respond to a request for comment.
Reporters attempting in recent years to obtain NIL-related information from public schools have typically been denied on account of federal and state student privacy exemptions.
Last fall, for example, ESPN reported on its generally unsuccessful efforts to view athlete NIL info from Texas A&M, Texas and 21 other Division I universities, by way of freedom of information requests. According to the article, Texas A&M initially responded to ESPN with an offer to provide 490 NIL contracts in exchange for production fees of $1,470. Though ESPN paid the money, it reported having only received a few dozen of those contracts four months later. Texas A&M’s office of general counsel did not respond to requests for comment about the status of this request or its position on the new state law.
Texas, meanwhile, provided ESPN a document listing dollar amounts or types of NIL deals between August 2021 and May 2022, which showed that Longhorns football players had netted almost $880,000 during that time period.
Prior to NIL’s arrival, the Uniform Law Commission, an organization that crafts nonpartisan model legislation for states, had debated whether or not its template bill should include specific language prohibiting the public release of NIL information. As Sportico previously documented, the commission ultimately decided not to explicitly address the issue.
Some leading athlete advocates have argued that there is a material difference in the public’s right to know the financial involvements of college coaches and administrators, who are employees of public universities, and college athletes, who receive no such benefits of employee status.
Earlier this year, an article in the Temple Law Review made the case that there is both a legal presumption and “compelling public policy arguments” favoring disclosure of college athlete NIL contracts—benefits that would ultimately redound to the athletes themselves.
“Transparency does not merely scratch the itch of curiosity; it helps reassure a skeptical public that competitions are fair and honest and that wrongdoers will be detected and punished,” wrote Frank LoMonte and Rachel Jones. LoMonte, now a lawyer for CNN, was previously the director of the Brechner Center for Freedom of Information at the University of Florida, and has separately advocated for the First Amendment rights of college athletes.
Aside from the military academies, all other NCAA public institutions are governed by the public records states and prevailing case law in their states. Since NIL went into effect, there have been two open records lawsuits, filed in two different states, dealing with the disclosability of athlete endorsement deals.
Gray Media Group, the owner of six local TV stations in Louisiana, filed suit against LSU in October 2021 for the NIL records it maintains, stipulating that the state’s NIL law at the time did not specifically exempt such records from disclosure. A state district court judge ruled against Gray Media, which declined to appeal the case. Louisiana’s legislature subsequently nailed the issue shut with its revised law enacted last summer, which now states that “any document disclosed by the intercollegiate athlete to the postsecondary education institution that references the terms and conditions of the athlete’s contract for compensation shall be confidential.”
State Sen. Patrick Connick, who sponsored the legislation, said he was not directly aware of Gray Media’s lawsuit.
“I am an attorney and do contract work and confidentiality clauses are standard,” he said in an interview.
In November 2021, the Athens Banner-Herald newspaper sued Georgia, claiming its denial of requests for Bulldogs athletes’ NIL contracts violated that state’s open records law. The parties settled this past fall after the presiding judge determined that un-redacted records revealing names of athletes would violate FERPA, but declined to dismiss the suit.
As part of its settlement, the newspaper withdrew its original public records request, which asked for individual copies of athlete NIL disclosure forms stipulating the financial terms of their publicity deals, and instead accepted aggregated numbers of Georgia athlete NIL deals and the total face value of those deals.
Despite the litigation, the Georgia general assembly did not seek to clarify this aspect of its prevailing NIL law when it was in session this year. The author of that legislation, state Rep. Chuck Martin, told Sportico that he doesn’t see an overall need to amend Georgia’s statute in the face of other states amending theirs, but that he is in favor of keeping NIL records confidential.
“I do think there should be some consideration to [clarify] those aren’t public documents,” Martin said.
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