In June 2021, the discussion around whether college athletes’ name, image, and likeness (NIL) contracts should be shielded from public disclosure took center stage. This conversation arose during a pivotal time as the NCAA accepted that athletes could earn endorsement income. At that moment, the Uniform Law Commission (ULC) was tasked with creating model legislation for states to use regarding NIL agreements, raising a critical legal question about the transparency of such contracts.
The NCAA mandated that universities collect athletes’ NIL contracts to monitor compliance with existing regulations prohibiting pay-for-play arrangements. This requirement sparked considerable concern, particularly from advocates for athletes who feared that university-level transparency laws might expose the private financial dealings of these student-athletes, especially at public institutions.
One notable voice in the discussion was Harvey Perlman, a law professor and former chancellor at the University of Nebraska. He advocated for an exemption for athlete NIL contracts in the proposed ULC legislation. However, the ULC did not reach a resolution, allowing universities to resist disclosing contract details by citing student privacy laws and trade secrecy. Attempts by journalists to legally challenge the lack of transparency faced swift defeats in the courts.
Fast forward to 2023, the landscape has evolved. Following the settlement in “House v. NCAA,” schools now have the ability to strike direct payment deals with their athletes. Unfortunately, these agreements remain hidden from public scrutiny, protected under the same laws used to keep NIL contracts private. This shift has transformed the debate into a potentially damaging scandal, undermining the essence of public records laws that ensure citizen oversight of government expenditures.
Recently, the New Mexico Foundation for Open Government (NMFOG) filed legal actions against the state’s Division I universities, New Mexico and New Mexico State, after being denied access to the schools’ athlete revenue-sharing contracts. This legal effort sits against a backdrop of state legislatures nationwide rushing to carve out exemptions that protect this kind of financial information from public view. While New Mexico has yet to formally adopt such measures, increased lobbying pressure likely looms, threatening transparency.
NMFOG’s lawsuits present a strong argument emphasizing the public’s right to access records concerning payments from public universities to any individuals, including student-athletes. The organization asserts that all income from taxpayer-funded institutions should be accessible to the public.
Furthermore, the lawsuits underscore that college athletes themselves have a vested interest in this transparency. Without insight into how revenue-sharing payments are distributed, it becomes impossible to assess whether female athletes, for instance, receive equitable opportunities as mandated by Title IX regulations.
The issue of transparency extends beyond gender equity. Male athletes, particularly those in high-revenue sports like football and basketball, also benefit from open access to compensation information. Transparency would allow all athletes to gain insights into how their counterparts at other institutions are compensated, enabling them to make well-informed decisions during contract negotiations.
The lack of transparency also complicates the conversation about the nature of these revenue-sharing agreements. The justification that these payments are solely about NIL rights rather than compensating athletes for their performances raises significant ethical questions. Maintaining this narrative delays the acknowledgment of the evolving commercial realities of college sports.
The call for contract disclosure is becoming increasingly urgent, as it signals the shift away from amateurism toward recognizing the professional nature of collegiate athletics. Advocates for the rights of student-athletes need to confront the discrepancies in how transparency is applied and actively support comprehensive public access to financial records, from coaching salaries to athletic department budgets, to protect and advance their interests.
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