Utah judge dismisses case over making NIL contracts public

A judge has sided with five public universities in Utah that challenged a State Records Committee decision requiring the schools to make college athletes’ name, image and likeness contracts public.

Third District Judge Amber Mettler agreed with the University of Utah, Utah State, Weber State, Utah Valley and Southern Utah universities that a law the Utah Legislature passed earlier this year shielding NIL agreements from the state’s open records law applies retroactively. Lawmakers passed the statute in response to a Deseret News attempt to obtain the contracts through Utah’s Government Records Access and Management Act or GRAMA.

Mettler found that even though the new law doesn’t use the word “retroactive,” it is “clear that it applies to all NIL agreements and related material, including those created before the effective date of the statute,” which took effect May 1, 2024. Mettler wrote that she was not persuaded that the word retroactive or similar wording is required. The Deseret News first sought the records in July 2023.

“While we respect the court’s decision, we strongly disagree with it. At the time the Deseret News filed its GRAMA request, no law existed putting student-athlete NIL agreements and related compliance records off limits to the public. And while the legislature did eventually pass such a law, it did not make it retroactive to GRAMA requests and appeals filed before the effective date. The court’s ruling unfortunately guts the rights of journalists to rely on GRAMA to inform the public on issues of public concern, including whether Utah’s public universities are actually reviewing NIL agreements for compliance with the law and NCAA eligibility requirements,” said Jeff Hunt, an attorney representing the Deseret News.

The court’s ruling comes as colleges and universities await a final court determination on a proposed settlement that would allow schools to directly pay athletes. It’s unclear whether those payments would be a matter of public record.

Panel orders disclosure of athlete contracts

In July 2023, the Deseret News requested NIL contracts and written agreements athletes submitted to the five Division I schools for review in at least the past year. All five denied the initial requests and the subsequent appeals, arguing GRAMA does not apply because the contracts are “education records” protected under the federal Family Education Rights and Privacy Act, or FERPA. The federal law broadly defines education records as “records directly related to a student” and “maintained by an education agency.”

The Deseret News appealed to the State Records Committee.

Last October, the seven-member panel unanimously ruled that NIL contracts are not “education records” and ordered the universities to release the documents. Its order called for the schools to disclose the contracts with an athlete’s name, sport and compensation, as well as the name of the business. Universities were 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.

“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.

Universities across the country have refused to make NIL contracts public, deeming them “education records” under FERPA as the schools in Utah did. The Utah records committee’s ruling appeared to be the first time a governmental body or court had rejected that argument.

“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.”

The Utah schools refused to disclose the athletes’ contracts and appealed the decision to state court.

Utah’s NIL law

As the case was being litigated, the Legislature — at the urging of the universities — passed the state’s first law regarding NIL this past March.

The Utah law requires college athletes to submit any contract over $600 in value to their university. The school then must provide the athlete written acknowledgment regarding whether the contract conflicts with university policies or provisions of the law. The law further states that the agreements, along with any other correspondence or material related to them, would not be subject to GRAMA, including contracts signed before the law existed.

The law bans 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. It also prohibits schools using tax dollars for NIL purposes.

While bemoaning the advent of NIL, lawmakers contended that allowing athletes’ contracts to become public records would put Utah schools at a competitive disadvantage in recruiting. They also said the contracts are private agreements between a business and an athlete.

“The Utah Legislature continues to claim it believes in transparency while passing laws against transparency, whether it is the release of public calendar information, or in this case information about money and power tied to our state institutions of higher learning,” said Doug Wilks, Deseret News executive editor. “We will continue to seek information that we think is in the public interest.”

During legislative committee hearings, Hunt called the lawmakers’ actions a “huge missed opportunity” for Utah to be a national leader on the issue.

“But rather than embrace transparency and accountability, the Legislature has made NIL a black box at all of Utah’s taxpayer-supported universities,” he said. “How can the public have any confidence that these deals are being properly regulated when there is zero public oversight?”

Gov. Spencer Cox signed the legislation soon after it passed.

Cox said earlier this year that he “hates” NIL and that it’s a “terrible thing” for college sports but it’s the law now.

“We’re at a big competitive disadvantage if other states aren’t required to release the terms of those contracts,” he said. “And as much as I’d like to get rid of all this, I do support the bill. I think it’s the right thing to do, put us on a level playing field and, especially because it involves young people and minors, I think it’s OK.”