Utah Wrestles With Whether NIL Contracts Are Public Records

By Les Morris

Jan. 25th, 2023 -A fascinating NIL case is playing out with the scenic Wasatch Mountains in Utah as a backdrop. It involves five state universities, a newspaper published by a subsidiary of The Church of Jesus Christ of Latter-day Saints, the state legislature, and the state judiciary.

With all the powerhouse institutions involved, it’s kind of like an NIL “Yellowstone.”

The case turns on a simple yet controversial question - are NIL contracts signed by student-athletes a matter of public record?

It is not an insignificant issue. The University of Utah, after all, is the school that gave us the memorable YouTube highlight of its 85 scholarship football players learning they were being given free leases on new 2024 Dodge Ram trucks.

Remember that scene? The players pouring out of their locker room onto the playing field at Rice-Eccles Stadium where the trucks awaited them. If there was a “Sportscenter Top 10” for NIL moments, this would be near the top.

The Deseret-News, the newspaper affiliated with the Mormon church, wants NIL contracts to be made public. They site Utah’s equivalent to the federal Freedom of Information Act (FOIA), known as the Government Records Access and Management Act (GRAMA), as controlling for their side.

A state administrative body, the State Records Committee, agreed with the newspaper in October. By a unanimous 7-0 vote, the panel ruled NIL contracts not to be education records and ordered the five universities to release them to the Deseret News.

The five universities – the University of Utah, Utah State, Weber State, Utah Valley, and Southern Utah - all object to making the NIL deals public on the grounds they are not a matter of public record but instead protected by the federal Family Education Rights and Privacy Act (FERPA).

After getting shut out by the State Records Committee, the universities took the matter to court, filing a complaint in Utah state course seeking to reverse the State Records Committee. The Deseret News responded by asking the court to dismiss the case filed by the universities and asking the court to order the universities to release the records. No decision has been reached in the matter.

In an email statement sent to NIL Newsstand this week, Doug Wilks, executive editor of the Deseret News said:

“We have two main motivations for seeking the release of NIL information. The first is that the Deseret News is committed to fairness and transparency. We think there is great risk when there is secrecy involving money from the private sector to public institutions and the athletes who represent them. Secondly, we’re interested in how this impacts both male and female athletes. Will the gains made by title IX be undone by private NIL agreements. We believe the public is best suited to make those determinations, but it needs information to do so.”

Of course, the universities disagree. In its complaint to the state court, the University of Utah, while maintaining the NIL contracts should not be made public because they fall under FERPA, also make a privacy argument.

“Had the records been subject to GRAMA,” the complaint reads, “they would be the private financial information of our students and disclosure of the records would constitute a clearly unwarranted invasion of personal privacy.”

Yet another turn in the matter began to take shape on January 16th, when Utah state representative Jordan Teuscher introduced an NIL bill essentially codifying student athletes’ rights to compensation. The initial bill was silent in terms of whether NIL contracts should be made public.

But Teuscher has decided to file a “substitute bill” which will amend the original version and now include language upholding the privacy right of athletes.

The issue is contentious and Teuscher expects a debate. But whatever language the legislature adopts, if it indeed passes the bill into law, Teuscher feels will be the right one.

“I think the legislature should make the decision, not the courts,” he said. “I’d like to see us resolve that problem and make the current lawsuit moot.”

The Utah legislature meets for 45 days every year and is only in its second week for this session. Teuscher will file his new version of the bill soon and the legislative debate will be on.

Meanwhile, the issue is still alive in the Utah state court system.

As with most everything else in NIL World, the operative term is “Stay Tuned.”