The debate over the public’s right to know what college athletes earn through their name, image and likeness has now moved past the merely theoretical stage. A pair of public records lawsuits have been filed against two SEC powers that refused requests to disclose their athletes’ NIL contracts.
The latest legal action came last week, when the Athens Banner-Herald went to court against the University of Georgia Athletic Association, which denied copies of the NIL disclosure forms Bulldogs athletes are required to fill out. The documents, like those for other universities, include information about the financial terms of publicity deals, as well as how they were arranged and whether an online NIL marketplace was used.
Georgia denied the request, citing state and federal student privacy laws, specifically the Family Educational Rights and Privacy Act. FERPA, which states that certain federal funds will be withheld from educational institutions that permit the release of “education records” without student or parent consent, has often been more broadly interpreted by schools as the basis not to disclose any non-“directory” student information.
The Banner-Herald’s lawsuit comes two weeks after a Louisiana judge ruled against a local CBS affiliate that had sued LSU over copies of its athlete NIL agreements.
In its complaint, Gray Media, the parent company of WAFB-TV Baton Rouge, argued that because Louisiana’s NIL law does not specifically include a public records exception, whatever relevant documents the university possessed should be subject to disclosure.
The petition, filed in September, noted that LSU athletics is “a public entity of great public interest,” which raised more than $157 million in revenue in 2018-19. It further sought to make the case that NIL agreements were “business records,” not “education records,” and that there was an “overwhelming public interest” in their release that trumped athletes’ privacy concerns.
Scott Sternberg, the lawyer representing Gray Media and WAFB-TV, declined to comment as to whether or not his client planned to appeal the judge’s ruling.
The Banner-Herald is making a substantially similar argument in its complaint against Georgia, although it cites specific case law in that state that, it argues, renders FERPA moot.
Prior to the suit being filed, David Hudson, a media attorney representing the Banner-Herald, sent a letter to Georgia, citing a 1988 state supreme court ruling that FERPA, also known as the Buckley Amendment, intended to protect records “relating to individual student academic performance, financial aid, or scholastic probation.”
Georgia responded to Hudson in its own, four-page letter, contending that NIL disclosure forms comfortably fit under FERPA’s privacy shield, since they “contain information directly related to a student and are maintained by an educational agency or institution.”
Brooke Savage, Georgia’s assistant general counsel wrote, “The statutory history of FERPA is clear that the definition of ‘education record’ is meant to be broad.”
The university has 30 days from the filing to answer the complaint and 45 days to respond to the newspaper’s discovery requests.
The state of Georgia has historically favored the interests of college sports programs over its sunshine statutes. In 2016, then-Gov. Nathan Deal signed what became known as “Kirby’s Law,” named for UGA football coach Kirby Smart, which specifically allows state-run athletic departments up to 90 days to even acknowledge receipt of a public records request. At the time of its adoption, at least one of the bill’s co-sponsors explained that its purpose was merely to guarantee rival schools would not be able to learn about Bulldogs recruits through public records requests.
Smart had lobbied the state legislature for the carve-out but has since sought to downplay his role in its enactment.
As Sportico previously reported, the question of how disclosable NIL contracts should be had been wrangled over by some experts prior to July 1, the first day states allowed college athletes to profit from their right of publicity.
In a May meeting of the Uniform Law Commission, an organization that crafts nonpartisan model legislation meant for widespread adoption, a committee debated including language that specifically precluded NIL deals from becoming public information. The ULC ultimately decided against doing so, on the assumption that there might be a benefit to these deals becoming public.
So far, some schools have tried to split the difference, providing certain details about the sources and financial terms of the NIL agreements its athletes have disclosed. For example, in August, Nevada Sports Net reported on 26 NIL deals the Nevada Wolf Pack athletes had reported between July 1 and Aug. 10. However, the school redacted the names of the athletes.
Similarly, independent journalist Andy Wittry reported in July that he had received 51 copies of NIL disclosure forms, with athletes’ names redacted, from New Mexico State.