Utah law would hide direct payments to college athletes from public view
Public university finances, including salaries, revenues and expenditures, are generally public records. But a proposed law in Utah would hide direct payments made to college athletes from public view.
Rep. Jordan Teuscher, R-South Jordan, is sponsoring legislation that would allow Utah universities to directly pay college athletes for the use of their name, image and likeness. HB449 initially made those NIL payments public records subject to the state's Government Records Access and Management Act or GRAMA.
But he stripped that provision from a new version of the bill, which passed out of the House Education Committee and awaits a vote on the House floor. Tuescher didn't discuss changes to the bill in the committee hearing that lasted less than 10 minutes.
In an earlier interview, Teuscher told the Deseret News that direct payments would be treated the same as other university disbursements that are a matter of public record. He said after the meeting Tuesday that he changed the bill because universities maintain the payments would be protected under the federal Family Education Rights and Privacy Act, or FERPA.
In addition to setting the stage for direct compensation, HB449 also expressly states that college athletes are not university employees, whose salaries are typically open records at public schools.
Jason Greco, University of Utah senior associate athletics director for compliance, expressed support for the bill at the committee meeting. But the school's athletics department declined to comment for this story.
Longtime Salt Lake City media attorney Jeff Hunt said GRAMA should apply to direct compensation.
'Payments made by public universities to student-athletes should be treated like any other disbursements made by the institution, including being subject to open records laws. That requirement was in the original version of this bill, and got it right,' he said.
'Without transparency, the public will have no idea how this money is being spent or whether universities are providing female student-athletes equitable participation opportunities as required under Title IX.'
Just days before President Joe Biden left office, a nine-page memo from the U.S. Department of Education's Office of Civil Rights defined NIL payments as financial aid that must be proportionate between men and women.
'When a school provides athletic financial assistance in forms other than scholarships or grants, including compensation for the use of a student-athlete's NIL, such assistance also must be made proportionately available to male and female athletes,' according to the memo.
The Trump administration, however, revoked that guidance this month, saying 'the claim that Title IX forces schools and colleges to distribute student-athlete revenues proportionately based on gender equity considerations is sweeping and would require clear legal authority to support it.'
Last year, the NCAA and its five major conferences agreed to a landmark $2.8 billion settlement in several antitrust lawsuits that would create a revenue-sharing model for schools to directly pay their athletes. Final approval of the settlement in House v. NCAA could come this spring, paving the way for universities to start paying players in July.
Under the new compensation plan, schools would be permitted but not required to set aside up to $20.5 million a year in revenue to share with athletes, though as revenue goes up, so could the cap. Athletes in all sports would be eligible for payments and schools would decide how to distribute the money among the sports on campus. Most Power Four schools are expected to spend $15 to $17 million on their football rosters.
'Certainly, in most states, payments by government agencies to anyone are subject to public records laws, whether faculty, staff or student workers. That wouldn't include private universities, but payments from public universities to student athletes should be available for anyone to see. That is, of course, if the legislatures don't pass an exemption keeping it secret,' Dave Cuillier, director of the Joseph L. Brechner Freedom of Information Project at the University of Florida, told the Deseret News for a story last year.
In Utah, the Legislature did change the law to keep NIL contracts secret during litigation between the Deseret News and five public universities in the state.
In 2023, the Deseret News sought athletes' NIL agreements submitted to their schools for review, largely as a check against undue influence and in protection of Title IX and women's sports.
Utah universities argued that NIL contracts are 'education records' under FERPA, which broadly defines education records as 'records directly related to a student' and 'maintained by an education agency.'
The State Records Committee, which resolves disputes over whether government records are public or private, rejected that argument and ordered the release of the contracts.
'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,' the seven-member panel determined.
The schools appealed the ruling in state court where a judge ultimately decided NIL contracts are private records based on the Legislature's change in the law to shield them from public view.
In separate legislation, a Utah lawmaker is proposing to scrap the volunteer State Records Committee in favor of a government-appointed lawyer to rule on disagreements over whether government records are public or private.
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