NIL deals and golf course watering bills underscore transparency concerns

SALT LAKE CITY — A bill to create parameters around how Utah’s college athletes can use their name, image and likeness to make money is being worked on in the Utah Legislature.

Likewise, a bill to require golf courses to report their water usage to the Legislature is beginning its legislative journey.

Both bills have clauses exempting their findings from current public records laws. And that has one government transparency group worried.

Should NIL deals be a public record?

HB202, titled Student Athlete Amendments, sets parameters around name, image and likeness — or NIL —  deals.

“The name, image, likeness, space has really been the wild, wild west,” said the bill’s sponsor, Rep. Jordan Teuscher, R-South Jordan.

It dictates that athletes can’t promote any products dealing with alcohol or tobacco products, including e-cigarettes, vaping, steroids, antibiotics, marijuana, gambling, betting, a “sexually oriented” business or a firearm that the student-athlete can’t “legally possess.”

It also requires that athletes disclose the terms of any NIL deals over $600 to their schools. The school must then give the athlete written notice on whether their contract conflicts with university policies or the law.

But it exempts those deals from Utah’s public records laws.

“A student-athlete agreement is not subject to any communication, or other material related to a student-athlete agreement is not subject to [Utah’s Government Records Act (GRAMA)],” a proposed substituted version of the bill reads.

Rep. Jordan Teusche on the House floor during the 2024 session of the Utah Legislature. (KSL TV)

“I think there are some concerns from the universities of the impact of that of putting our universities at a disadvantage against other universities across the nation and also causing some discontent across the teams. And what one athlete at what one athlete might be making versus another athlete,” Teuscher said.

He said that Utah’s higher education institutions requested that the deals stay private.

Teuscher added that he wants to put the discussion to the full legislature to decide whether these deals should be subject to Utah’s open records laws, not leave them subject to courts to determine the legislature’s intent.

Teuscher argued that the contracts with schools are simply for the school to ensure the athlete complies.

“And that’s the role that the government plays. But what the deal is, what the details of the deal, you know, how much money they’re making, all of that really doesn’t it doesn’t concern the state or the university,” he said.

Teuscher argues that deals are private records between individuals and companies.

“We don’t require influencers who happen to be students that are not associated with athletics from disclosing any sort of deals that they have. And so I think there’s a fair argument to say that because those are private transactions between private companies and individuals, the government shouldn’t be involved in disclosing that,” he said.

The argument for transparency

The State Records Committee ruled that NIL contracts should be public. But a group of universities is suing to keep them private.

Jeff Hunt is defending KSL’s sister station, the Deseret News, in that suit. He also represents the Utah Media Coalition, of which KSL is a part.

“(NIL deals will) essentially be a black box that the citizens of Utah would have no idea what kind of deals these are, whether they’re complying with the statute or the NCAA regulations, and that’s just not the kind of government we have,” Hunt said. “If government is going to get in the business of regulating these private agreements and the public has an interest in making sure that they that they’re performing that regulatory function.”

Jeff Hunt, explaining what new bills could do for GRAMA requests during the 2024 session of the Utah Legislature. (KSL TV)

Hunt pushed back on the argument that competition for athletes would be stifled by deals being public in Utah.

He believes they could drive competition by setting a market price. He also disagrees that the contracts are private, arguing that once they get into the hands of the universities, they have public interest.

“That’s when the public interest kicks in, is when they submit the contract for review and determine whether it complies or not. I mean, how are you going to be able to tell whether it’s an illegal pay-to-play arrangement unless you know what the contract terms are?”

Should golf courses report water use?

The other bill dealing with transparency is SB195, a bill requiring golf courses to report their water usage to the Legislature. Those findings would also not be subject to Utah’s public records laws.

“The golf course owners and including, you know, even counties and cities, they felt like that reporting was an effort for us to then force down some new regulations on them,” said the bill’s sponsor, Sen. Dan McCay, R-Riverton about a similar effort attempted last year.

“Yeah, sprinkler shaming is a real issue,” he joked.

He argues private golf courses are private users and, just like individuals, they shouldn’t be subject to GRAMA laws.

“Their individual uses, we don’t make that subject to GRAMA. And just if you treat the golf course the same as everybody else’s treated, I feel like that’s fair,” McCay said.

Sen. Dan McCay, on the Senate floor during the 2024 session of the Utah Legislature. (KSL TV)

But the state also owns and manages five golf courses, and many counties have dozens of others. McCay said they also have water rights and maintain that they are being good stewards of their water.

He argues that by keeping the records private, the golf courses will at least allow the legislature to monitor their water use.

“Instead of, you know, that kind of reporting where it was … the big public process and kind of hitting them with a stick over how much water they’re using. Instead, we make it a private record and then, you know, try and see what we can do to help support their efforts to save water,” McCay said.

Both bills are waiting to be heard in their respective legislative committees.

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