Gov. Jared Polis has signed a bill that exempts some information about name, image, and likeness payments to the state’s college athletes from public scrutiny.
Under HB 25-1041, “personally identifiable information” contained in an NIL contract or agreement, communications or corollary documents that relate to those contracts or agreements, or the athlete’s name, image, or likeness are shielded from disclosure under the Colorado Open Records Act.
Rep. Leslie Smith, D-Boulder and Estes Park’s state representative, said in a February interview that the new law’s CORA exemption will not prevent the public from learning all information about NIL payments.
“The NCAA is going to require a report each year of how much total money that’s being paid for NIL and from the university,” she said. “We have gone a step further, and we will be also reporting to the Department of Education how much is being paid for at NIL by sport and by gender as well.” She referred to Colorado’s education regulator.
Smith pointed out that NIL contracts will be subject to scrutiny to look for patterns of NIL patterns among the various sports at state universities. “So, they could see there’s 30 contracts being paid to football players, and there’s 10 to women’s basketball, and you know this number to track and field and so forth,” she said.
Opponents of the bill have argued that it will not make Colorado universities more competitive in the world of intercollegiate athletics. One witness at a committee hearing on the measure, a lawyer for the Colorado Freedom of Information Coalition, pointed to an academic study that shows NIL payment secrecy to be inconsistent with the public interest.
“Concealing NIL records from the public disserves the interests of every stakeholder—the public, the athletes, and college sports itself—in making sure that competition is fair, honest, and passes the test of legitimacy and that athletes have equitable earning opportunities befitting their level of accomplishment,” concluded the authors of that paper.
Critics of the measure claim that shielding the amount of money college athletes are paid might actually harm them.
“Doing this in secret doesn’t protect students, it exposes them to potential abuse,” Tim Regan-Porter, the chief executive officer of the Colorado Press Association, told CPR News in March. “At a minimum, contract amounts should be public, even without names, that would allow the public to see the range of deals, identify disparities and expose potential abuses.”
Polis expressed discomfort, in a signing statement, about the CORA exemption.
“I have concerns about the bill’s new Colorado Open Records Act (CORA) exception regarding student athlete contracts,” he wrote. “While the bill’s exception is narrowly tailored, it follows an unfortunate trend of legislative proposals that ultimately impede access to official records that are arguably within the public’s interest to view.”
While Polis did not directly threaten to veto other bills that purport to limit CORA’s reach, he hinted at a desire to see the General Assembly show more sensitivity to giving the public access to government records. “These exceptions move transparency in the wrong direction and any other proposals that further prevent or delay public access to information will be carefully reviewed,” the second-term chief executive wrote.
HB 25-1041 also explicitly authorizes the state’s public colleges and universities to enter into NIL contracts and agreements with student athletes and to compensate the athletes for the use of their name, image, and likeness.
That provision explains Polis’ decision to sign the bill. In his signing statement, the governor pointed to the recent settlement in the House v. National Collegiate Athletic Association case.
The House settlement, now in front of a California-based federal judge who is considering whether to approve it, explicitly contemplates NIL payments to college athletes nationwide. Under the terms of the deal, athletes who played in five college conferences – the Atlantic Coast Conference, Big Ten, Big 12, Pac-12, and Southeastern Conference – between 2016 and 2021 would be paid $2.78 billion. The NCAA will cover $1.2 billion of that amount, with academic institutions on the hook for the remaining amount.
U.S. District Judge Claudia Wilken is expected to decide whether to give final approval to the settlement after holding a hearing on April 7.
HB 25-1041 also bans public colleges and universities in Colorado from forbidding agent representation of student athletes.
“Our student athletes should have the freedom to contract and develop their careers, and our institutions of higher education should work to increase and retain top talent while supporting athletes in all aspects of their careers,” Polis wrote in his signing statement.
Polis signed the measure, for which Smith was the lead House sponsor, on March 28.