A Utah House committee approved the state’s first NIL bill

A Utah legislative committee Thursday voted to advance a bill that would exempt college athlete’s NIL agreements submitted to universities from the state’s public records law.

Members of the House Education Committee contend that universities in the state would be at a competitive disadvantage for recruiting top athletes if name, image and likeness contracts were disclosed.

“My perspective is, I would love for all this to be made a public record but it would have to be across the board, all 50 states, all universities throughout the country would have to comply,” Rep. Joseph Elison, R-Washington, said during a public hearing.

Elison was among 11 committee members who voted to send HB202 to the full House for consideration. Only one lawmaker dissented.

The bill is Utah’s first attempt at some regulation of name, image and likeness in college sports.

It would require athletes to submit any NIL contract over $600 in value to the university. The school then must provide the athlete written acknowledgment regarding whether the contract conflicts with university policies or provisions of the proposed law.

The bill further states that the agreements, along with any other correspondence or material related to them, would not be subject to Utah’s Government Records Access and Management Act, or GRAMA.

The law also would prohibit 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.

Speaking for state higher education institutions, Henrie Walton, of Utah Tech University, told the committee that the universities in Utah are comfortable with the bill.

The Utah Media Coalition, a consortium of news outlets that works to keep government records open, opposes the section that would shield NIL contracts from public scrutiny.

“There’s a difference between saying all these records ought to be classified as public under GRAMA and taking them out of GRAMA,” Jeff Hunt, a Salt Lake media law attorney representing the coalition, told the committee. “The bill takes them out of GRAMA, which means they don’t have to be retained, they’re not subject to (a public records) request, they’re not subject to a legislative audit.”

Hunt said NIL agreements should remain subject to the law but that universities have the ability to redact athlete’s private information, as GRAMA currently allows.

Doug Wilks, Deseret News executive editor, said shielding the records from the public has Title IX implications. Without transparency, he said, it’s not possible to know if female athletes are being treated fairly.

“We are deeply concerned about disparity between male athletes in popular, money-making sports like football and basketball, and female athletes in sports which do not generate near the level of income, TV exposure or notoriety,” he told the panel.

“You’re talking about putting something into law that prevents anybody from having oversight over what’s happening with men’s and women’s athletics,” Wilks said. “We don’t think that’s right.”

The Deseret News is currently in litigation with the University of Utah and Utah State, Weber State, Utah Valley and Southern Utah universities over whether NIL contracts are public records. Hunt represents the news outlet in the court case.

Last October, the State Records Committee unanimously ruled that NIL contracts are public records and ordered the schools to release them. The universities challenged the decision in court.

Rep. Kera Birkeland, R-Morgan, said she becomes concerned when someone says the proposed NIL law could harm Title IX.

“The boys’ football team makes a lot more money. It’s just reality. They sell a lot more tickets, more people are going to the boys’ football games than any other sporting event for the university. So, I don’t want to say that Title IX is going to say that the girls have to get something too just out of fairness,” she said.

NIL deals, she said, are transactions between the athlete and a private business.

Rep. Jordan Teuscher, R-South Jordan, the bill’s sponsor, said HB202 mirrors NCAA policy, with the addition of classifying NIL contracts as private records.

GRAMA, he said, was written long before NIL was ever envisioned, and the Legislature needs to decide whether the contracts should be public records or not. He said there are good arguments on both sides.

“But ultimately as I’ve heard both sides of the argument, I think it’s clear that it’s important for us to protect these records as they are not a contract that involves the government,” Teuscher said.