The debate about the right of the public to know what university athletes deserve with their name, their image and their likeness has meanwhile gone beyond the purely theoretical stage. Two public record lawsuits have been filed against two SEC powers who have denied requests to disclose their athletes’ NIL contracts.
The latest lawsuit came last week when the Athens Banner-Herald went to court against the University of Georgia Athletic Association, which rejected copies of the NIL disclosure forms that Bulldogs athletes are required to fill out. As for other universities, the documents contain information on the financial conditions of advertising transactions, their structure and whether an online NIL marketplace was used.
Georgia denied the request citing state and federal data protection laws, specifically the Family Educational Rights and Privacy Act. FERPA, which states that certain federal funds are withheld from educational institutions that allow the release of “educational materials” without the consent of students or parents, has often been broadened by schools as a basis to exclude students who are not on the “directory” to disclose information.
The Banner-Herald’s lawsuit comes two weeks after a Louisiana judge ruled against a local CBS subsidiary that was suing LSU over copies of its athletes-NIL agreements.
In its complaint, Gray Media, the parent company of WAFB-TV Baton Rouge, argued that all relevant documents held by the university should be disclosed because Louisiana’s NIL law does not specifically provide an exception for public records.
The petition filed in September found that LSU athletics was “a public body of great public interest” with revenues of more than $ 157 million in 2018/19. She went on to argue that NIL agreements were “business records” rather than “educational records” and that there was an “overwhelming public interest” in their release that trumped athletes’ privacy concerns.
Gray Media and WAFB-TV attorney Scott Sternberg declined to comment on whether his client would appeal the judge’s judgment.
The Banner-Herald makes an essentially similar argument in its complaint against Georgia, although it does refer to specific jurisdiction in that state that it believes render FERPA devoid of purpose.
Prior to the filing of the lawsuit, David Hudson, a media attorney representing the Banner-Herald, sent a letter to Georgia referring to a 1988 Supreme Court ruling that FERPA, also known as the Buckley Amendment, intend to protect records “relating to individuals” for academic achievement, financial assistance, or probation.
Georgia responded to Hudson in his own four-page letter, claiming that NIL disclosure forms fit comfortably under FERPA’s privacy shield because they “contain information directly relating to a student and maintained by an education agency or institution”.
Brooke Savage, Assistant General Counsel of Georgia, wrote: “The legal history of FERPA is clear that the definition of ‘educational attainment’ is intended to be broad.”
The university has 30 days from filing to respond to the complaint and 45 days to respond to the newspaper’s inquiries.
The state of Georgia has historically favored the interests of college sports programs over its sunshine bylaws. In 2016 the then Gov. Nathan Deal signed what came to be known as “Kirby’s Law,” named after UGA soccer coach Kirby Smart, which specifically allows state sports departments up to 90 days to acknowledge even receipt of a public record request. At the time of its passage, at least one of the bill’s co-sponsors stated that its purpose was merely to guarantee that competing schools would not be able to find out about Bulldogs recruits through requests for public records.
Smart had advocated the spin-off with state lawmakers but has since tried to downplay his role in enacting it.
As Sportico previously reported, the question of what disclosure NIL contracts should be had been disputed by some experts before July 1, the first day the states allowed college athletes to benefit from their right of disclosure.
At a May meeting of the Uniform Law Commission, an organization that drafts bipartisan model laws intended for widespread adoption, a committee discussed a language that specifically prevented NIL deals from becoming public. The ULC ultimately decided against it, assuming that posting these deals could be beneficial.
So far, some schools have tried to break down the difference by providing certain details about the sources and financial terms of the NIL agreements their athletes have disclosed. For example, in August Nevada Sports Net reported on 26 NIL deals that the Nevada Wolf Pack athletes reported between July 1st and August 10th. However, the school has blackened the names of the athletes.
Similarly, independent journalist Andy Wittry reported in July that he had received 51 copies of NIL disclosure forms from the state of New Mexico with the names of the athletes blacked out.
