THE LEAD: A journalist is suing UW-Madison after the public university refused to release documents related to name, image and likeness (NIL) contracts it has in place with student athletes. The university is playing a fantastic shell game here, claiming it doesn’t have the contract, but rather the UW Foundation does. The Foundation thus argues it doesn’t have to release the contract because it’s a private entity:
“There’s no good reason why UW-Madison should be using its foundation to effectively offshore public records,” journalist Daniel Libit told the Milwaukee Journal Sentinel.
Spokespeople for both UW-Madison and the UW Foundation said they hadn’t received the complaint and wouldn’t comment on pending litigation.
(ED NOTE: To clarify, the contract under discussion is the one between the UW and Altius Sports Partners, “a firm other large universities have hired to support student-athletes who can now profit from endorsement deals they strike.” Individual deals like athlete Bill Smith agreeing with Vince Filak Ford to appear in commercials are private contracts between private individuals and private companies and not subject to open records law.
If, however, athlete Bill Smith signed an NIL agreement of some kind with a PUBLIC institution, the public entity would would be required to fork over the paperwork. Bill Smith could still tell you to go to hell and take a left.)
BACKSTORY: The true NIL set up is about three years old, but it traces its history back to a lawsuit filed by former UCLA basketball player Ed O’Bannon in the early 2000s. O’Bannon discovered that his likeness was being used in an NCAA video game and he was not provided with compensation for that.
The NCAA argued (as it had for generations) that O’Bannon was a “student-athlete” which meant he didn’t get paid in cash, but rather got a really cool scholarship and the ability to be exploited… er… part of a team sport. The courts thought differently and rendered a judgment of more than $44 million in legal fees. The upshot of that was that the universities were either going to have to stop making money off of student athletes (Hard No) or find a way to compensate athletes (Not thrilled, but grudgingly complied).
Thus, the NCAA let the students have say over their usage in commercials, endorsements and more. This is why you now see commercials like this one, with Iowa star Caitlin Clark:
Over the past three years, the NIL experience has fallen in line with maxim this for a number of reasons:
- Laws differ from state to state and with no federal law on it, it’s the wild west.
- Schools differ in terms of resources, so basically one place can essentially “buy” a college kid with the promise of a sweeter NIL agreement than wherever they currently play.
- People have always taken advantage of student athletes for their own nefarious interests, only now the money getting thrown around is bigger and at least quasi-legal.
Long story short, the NIL situation is like spotting a cockroach in your house: Whatever you saw, chances are the problems you didn’t see are much worse. Thus, the need to pry records out from under whatever rock these institutions are keeping them to figure out what is going on.
DOCTOR OF PAPER HOT TAKE: First, I really hope Libit wins because what little experience I have had with foundations and private money has shown me that there is likely a LOT of shady stuff going on related to the NIL situation.
I remember trying to find out how a coach’s contract was bought out, only to find the money came through a foundation. I tried to figure out how a student newspaper was staying afloat, only to find out that the money came through a foundation. In my own institution, we had a ridiculous game of three-card monte that almost landed our foundation in bankruptcy and our former chancellor in jail. In each case, the foundation pulled the “we’re a private entity” card and it wasn’t until everything went to hell in a speedboat that we even got a sniff of what had happened, if we found out at all.
Second, Libit is absolutely wrong about there being “no good reason” why UW-Madison is stashing these contracts somewhere that open-records requests can’t get them. It’s the same “good reason” people go out to eat at a conspicuous place, pay with a credit card and make sure everyone at the bar talked to them from 7-9 p.m. on a Tuesday, the exact time a hit man is whacking one of their enemies.
If I had a dime for every time a public official used some weaselly dodge to avoid creating or turning over public records, I’d probably be able to NIL my way into a great team here at UWO in every sport. There was Sarah Palin and Scott Walker using private emails to dodge open records when they served their respective states. There was Missouri’s governor, Eric Greitens, who had his staff using an app that destroyed messages after they were read to avoid open records requests.
And then there was the time Ball State told us that the documents pertaining to a provost search weren’t “open records” but essentially an “inter-office memo” only intended to be shared with the 35, 000 people at or around the university.
Third, and most importantly, if I were the people at Foundation, I’d give them the damned Altius contract right now. As it stands, courts haven’t ruled that foundation records are public. If these chuckleheads let this go through a court system and some judge (or multiple judges, as I’m imagining they’d appeal a loss) decides ALL their records ARE open, that’s not going to bode well for foundations everywhere. That’s not just me yammering. The pro journalists know it:
It’s like when people in the state of Wisconsin wondered, “Gee, why are the Republicans agreeing to Democrat Gov. Tony Evers’ redistricting maps after fighting against them for years?” The answer was, the court was going to make its own decision and it was likely going to screw them more than if they just signed off on Evers’ maps.
Of course, I’m guessing the Foundation isn’t going to be this smart, so it should be a fun fight to watch.
