The discussion over radical changes to how college athletes are compensated kicked off at the Colorado State Legislature on Wednesday.
Lawmakers peppered CU Boulder representatives with questions about the legislation, House Bill 1041, that would allow higher education institutions to pay students directly for their “Name, Image and Likeness” or NIL. No action was taken and the discussion will continue, likely next week.
Among the contentious issues is a provision of the bill that prohibits public disclosure of contracts between student-athletes and higher education institutions.
“This is really important to protect our student-athletes,” argued CU Boulder athletic director Rick George before the state house education committee. “We are the most visible program, one of the most visible programs, in the country, there's already a ton of scrutiny on our student-athletes, where it impacts their mental health and their financial wellbeing.”
George said that if a student-athlete had a bad game or a bad season they could be subject to harassment if public records show how much the university is paying them.
When it comes to paying student-athletes for their NIL rights, George noted there isn’t a lot of flexibility — a federal court judge granted preliminary approval in October in a number of antitrust cases, known as the House settlement, essentially requiring the universities to pay athletes and provide back pay for previous student-athletes.
George told lawmakers that 28 states, including Colorado, have adopted NIL laws, and many are busy updating laws as new court decisions and NCAA rules alter the landscape further. George said that eight other states have carved out exemptions to releasing NIL contracts. And he said that private universities would not be subject to open records laws, putting schools like CU at a disadvantage.
George outlined how the process will go in paying athletes for the NIL rights. First, they would put a price on the value of an individual’s name, image and likeness.
“Once we obtain those rights then there will be some things that they will have to do for that,” said George. “So you've got to promote your program, you've got to do social media, you've got to make appearances, you've got to go to alumni and donor events and things like that. So it will lay out what those obligations are for that student-athlete, and they'll all be different based on the value of their NIL rights.”
Student-athletes currently can profit from NIL deals with third parties, like Nike, but Colorado law does not allow an institution of higher education to compensate athletes for their NIL rights. The bill would allow university compensation and let athletes get professional representation, while keeping those NIL contracts from being publicly disclosed under the Colorado Open Records Act.
Open records advocates pushed back hard on the lack of disclosure in the bill.
“The provision exempting NIL contracts from the Colorado Open Records Act is simply unnecessary and harmful to public accountability,” said Luke Story, vice president of the Colorado Broadcaster Association. “We urge you to amend the bill, and we would like to be included in conversations moving forward on amended language.”
Eric Maxfield, an attorney in private practice and a board member of the Colorado Freedom of Information Coalition, said it would be impossible to verify the equitable distribution of funds by gender, as required by a federal law known as Title IX if the NIL contracts are not disclosed.
“It would result in reliance on the university, and only the university, to police itself,” said Maxfield, who noted that there are pending lawsuits against universities in other states related to compliance with Title IX in this new era of college sports.
A proposed amendment to the bill that would require aggregate NIL contract data did not satisfy the transparency issues raised by freedom of information advocates.
Lawmakers too expressed concern about Title IX issues, public disclosure, and the rapidly changing nature of what it means to be a student-athlete.
“Universities are now entering the business of having to negotiate for name and likeness, outside of its primary business, which I believe is educating kids,” said Rep. Jennifer Bacon, D-Denver, who urged the proponents of the bill from CU Boulder to provide more information about how these issues are playing out in other states. “And us figuring out how the money's coming in and out of public institutions I think is very much of interest to the legislature.”
“Quite frankly this is a new scope of how to even think about public university,” Bacon said.
Other state representatives shared that frustration, what many called the “Wild West” of money in college athletics now.
“We have no answers from the feds, we have no answers from the states, we have no answers from the universities,” said Rep. Anthony Hartsook, R-Parker. “The whole country is in disarray and disagreement on what's going on, and yet we are asking for a bill that's going to take things more away from public scrutiny, public review.”
One of the bill’s sponsors, Rep. Lesley Smith, a Boulder Democrat, requested that the bill be laid over. It could come back before the education committee as early as next Wednesday, but she cautioned that there’s a ticking clock, an April deadline, on providing back pay to student-athletes for the use of their NIL rights.
