As the University of Georgia prepares to compete in the NCAA College Football Playoff championship, it’s also fighting another battle, on another playing field: defending itself against public record lawsuits following its refusal to disclose its athletes’ “name, image and likeness” contracts. A similar lawsuit has also been brought against Louisiana State University.
By way of background, in 2021, the NCAA announced an interim policy that allows student-athletes from all three divisions to monetize their name, image and likeness (often referred to as “NIL”). The new policy went into effect on July 1, 2021.
The NCAA’s new policy was enacted on the cusp of laws taking effect in a number of states, such as Alabama, Florida, Georgia, Mississippi, New Mexico and Texas, which allow NCAA athletes to monetize their NIL.
The lawsuits against the University of Georgia and Louisiana State University were filed by two news organizations who sought details of NIL contracts, arguing that such records are not exempt from a public records request. In refusing the requests, the universities cited the Family Educational Rights and Privacy Act (“FERPA”), a federal law which protects certain records from public release without student or parent consent.
The court in the Louisiana State University case ultimately ruled against the news organization. At the time this post was written, the case against the University of Georgia was still pending.
As NIL deals become more common, and the dollar amounts of those deals grow larger, there will be increasing media scrutiny of them. As schools push back against public records requests, more lawsuits will be filed, and FERPA will likely continue to be cited as grounds for withholding records. Until a federal court of appeals has a chance to weigh in, there may be a patchwork of decisions with varying outcomes as to the question of whether the public has a right to the details of NIL deals at public universities.
We will continue to keep you apprised of developments in this evolving area of higher education law and regulations.
If you have any questions, please contact Ryan Kauffman.
Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters and representing higher education institutions. You can contact him at firstname.lastname@example.org or 517.377.0881.