In June 2021, I wrote an article for Sportico exploring the debate over whether college athlete NIL contracts should be subject to state sunshine laws.
Back then—those heady, almost nostalgic days leading up to the NCAA adopting its interim name, image and likeness policy—the Uniform Law Commission (ULC) had assembled a task force to draft model NIL legislation for states to plug and play. As I reported at the time, one key question was whether such legislation should stipulate how or if universities should disclose copies of athlete NIL contracts they obtained.
It was already understood by then that, as part of the NCAA’s begrudging acceptance of athletes earning endorsement income, schools would be required to collect their players’ NIL contracts. Ostensibly, this was so they could ensure the deals didn’t violate the NCAA’s still-extant rules against pay-for-play and improper inducements. The school disclosure requirement drew concerns from a number of quarters, especially among athlete advocates, who worried that it could lead to college athletes at public universities having their private business dealings unmasked by state sunshine laws.
One ULC task force member, Harvey Perlman, a law professor and former University of Nebraska chancellor, pushed to exempt athlete NIL contracts from the commission’s model legislation. Despite his pleas, the ULC left the matter unresolved. In the years that followed, schools closed ranks in resisting disclosure, primarily by citing student privacy (FERPA) or trade secret protections. In response, a few news organizations tried to litigate the matter, but were quickly rebuffed by courts.
In 2023, Frank LoMonte, then a University of Florida law professor and director of UF’s Brechner Center for the Advance of the First Amendment, co-authored an article in the Temple Law Review, “Blowing the Whistle on NIL Secrecy.” As the title implied, LoMonte and his collaborator, Rachel Jones, made both a legal and public policy case for why such contracts between athletes and third-parties should be disclosed.
“We have repeatedly seen how secrecy contributes to abusive and exploitative conditions within college athletic programs, sometimes putting athletes’ physical safety at risk and allowing wrongdoing to fester,” the article said.
Though I consider myself a committed transparency zealot, I was fairly agnostic when it came to this sunlight debate. After all, records held by public institutions aren’t always public by default—and I sympathized with concerns that college athletes, long marginalized, shouldn’t face new privacy intrusions just as their publicity rights were gaining recognition.
But that was then.
Now, in the wake of the House v. NCAA settlement, schools can sign agreements to pay their athletes directly. Yet those agreements are just as shrouded from public view, shielded by the same exemptions—FERPA, trade secrets—that were once used to justify withholding third-party NIL deals. In light of that, this is no longer a debate. It’s a scandal, one that undermines the core purpose of public records laws: ensuring that taxpayers can see how public institutions spend public money.
Last week, the New Mexico Foundation for Open Government (NMFOG), a First Amendment and press advocacy group, filed companion lawsuits against the state’s two Division I universities, New Mexico and New Mexico State, after being denied copies of the schools’ revenue-sharing contracts with athletes.
The litigation faces both an uphill climb and a narrowing window, as legislatures across the country rush to create special public disclosure carveouts for this information. New Mexico hasn’t yet followed the lead of states like Colorado in actively hiding this information, but if local lawmakers weren’t already being aggressively lobbied to do so before, you can be sure they will now.
NMFOG’s suits make a clear-cut argument for the public’s “substantial interest” in ensuring its overall right to public inspection isn’t horse-collared by its passion for college sports: “Payments by public universities to anyone; whether to faculty, staff, student-workers or student-athletes, are public record and should be available for anyone to see.”
But the suits also advance an equally compelling case for why a specific subset of the public—the college athletes—has a direct stake in this transparency.
“Without transparency,” it states, “no one—including female student-athletes themselves—has any idea whether UNM’s distribution of revenue-sharing payments provides female student-athletes equitable opportunities or equitable treatment between genders as required under Title IX.”
It’s not just about fairness for women. Male football and basketball players, who will receive the largest shares of House money, should also support public access. Transparency allows all athletes to see not only how much their counterparts at other schools are earning–without having to rely on aggregated from vested third parties like Deloitte or Opendorse–but also to understand the full terms of those deals. It stands to reason that this kind of visibility leads to more informed, strategic, and equitable negotiations.
Finally, this obscurantism delays a necessary reckoning with the Big Lie about revenue-sharing in college sports—enshrined in the House settlement—that the money schools are now paying athletes are for their NIL rights, not for the actual services they perform on the field. So long as colleges athletics cling to that fiction, it must sustain the pretense in every other corner of the industry.
One of the clearest cracks in that facade is contract disclosure itself—an implicit admission that this is no longer amateurism, but a commercial relationship between institutions and the labor producing their product, whether or not we dare call them “employees.”
Advocates for athletes’ rights should avoid repeating the same transparency double-standards that have long undermined those rights, and instead champion the vital role open records—from coaching deals to athletic department budgets—have played in advancing their cause.