Inside the order requiring Utah universities to release NIL contracts
Recognizing strong feelings some might have about keeping college athletes’ NIL contracts private, a Utah governmental body concluded that they become public records under state law when they are shared with a university.
In an order issued Monday, the State Records Committee explained its reasoning for requiring five Division I schools in Utah to release the contracts requested by the Deseret News under the state’s public records law. The universities have 30 days to appeal the ruling to a state court.
The order calls for the universities to disclose the contracts with an athlete’s name, sport and compensation, as well as the name of the business. Universities are allowed to redact personal information such as home addresses, phone numbers and email addresses. Commercial information can be redacted only if the athlete included a confidentiality claim when the contract was submitted to the school.
“The committee’s decision is thorough, well-reasoned and legally correct,” said Jeff Hunt, an attorney representing the Deseret News.
“The universities are spending taxpayer dollars monitoring college athlete NIL deals to ensure compliance with NCAA eligibility requirements. If that’s the case, then the public has a right to know if they are properly performing that compliance function.”
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Schools across the country have refused to make NIL contracts public, deeming them “education records” under the federal Family Education Rights and Privacy Act, or FERPA. The Utah committee’s ruling appears to be the first time a governmental body or court has rejected that argument.
In its 20-page decision, the committee touched on the origin of the term “student-athlete,” noting it was coined by the NCAA in the 1950s to counter any claim that college athletes were employees and entitled to workers’ benefits.
“With the word ‘student’ so strongly highlighted as the primary identity of the college athlete, it’s understandable that a decision requiring the release of a student’s contract would incite strong opinions,” the committee wrote.
“However, we underscore the fact that these contracts aren’t entered into by high school or junior high athletes. The NIL contracts being requested are signed by legal adults who play sports for a public institution and agree to share the contract with a governmental entity.”
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 the state Government Records Access and Management Act, or GRAMA. All five denied the initial requests and the subsequent appeals. (BYU was not included because, as a private university, it is not subject to the open records law.)
After an Oct. 19 hearing, the seven-member records panel unanimously granted the Deseret News’ appeal of the schools’ denials. The order issued Monday formalized the committee’s decision.
Most universities have policies and some states have laws requiring athletes to submit their NIL contracts to a compliance office for review or 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.
That constitutes doing the public’s business, according to the committee.
“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.
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Attorneys for the universities argued that GRAMA did not apply because NIL contracts are “education records” under 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 committee rejected those arguments and concluded that it’s self-evident that college athletes give up some of their privacy when they sign deals to profit from their name, image and likeness.
“It seems axiomatic that an athlete signs a contract to exploit his or her name, image and likeness into the marketplace for pecuniary gain loses an expectation of privacy,” according to the decision.
The records panel relied on 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.
Attorneys for the universities told the committee that some schools contract with a third-party platform to hold NIL contracts and deliver them electronically to the compliance office. The fact that the records are maintained by a third party who is not a school official “strongly indicates” that NIL contracts cannot be considered education records, according to the committee.
An NIL contract is commercial, not institutional, according to the ruling, and by its nature is not an education record.
“The agreement has nothing to do with the athlete’s university enrollment, grades, scores, attendance, counseling or disciplinary records,” the panel wrote. “Instead, the contract pertains to the student’s name, image, likeness, athletic ability, and requirements of the athlete under the agreement.”
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The committee noted that some might see its decision as disregarding the interests of college athletes and that the public has no business knowing the private contractual details students enter into of their own accord.
“We are sensitive to these sentiments and wish to make it clear that our decision today was not driven by policy preferences or even by the authority the law grants us to weigh parties’ interests and decide on our own which interests are more prevailing,” the panel wrote.
Rather, the committee said it applied the law and court rulings to the facts around NIL contracts, saying, “Our decision was the deductive result.”
In conclusion, the panel wrote that if “despite our careful reasoning” public policy dictates NIL contracts be restricted from public access, “we believe the legislative process to achieve that result is much more preferable than this committee attempting to force an interpretation of the statute that cannot be supported.”
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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 athletes’ privacy and companies’ confidential business practices.
A state court judge ruled in the school’s favor and the television station did not appeal.
