Judge to rule on Athens Banner-Herald's effort to access UGA NIL records

The hot topic in collegiate sports known as NIL — for name, image and likeness — was debated Friday in the Oconee County Courthouse.

Superior Court Judge Eric Norris listened as David Hudson, representing the Athens Banner-Herald, and Edward Tolley, the attorney for the University of Georgia Athletic Association, argued about whether the Athletic Association should release documents through the open records act on UGA athletes with NIL contracts.

Norris has not yet ruled on the newspaper’s complaint, but from the outset he noted what a “novel issue” NIL has become for those working in college sports.

Background: Banner-Herald files complaint against UGA Athletic Association alleging open records violation

Under NIL, student athletes can sign contracts with various companies, and for the first time, earn money by the use of their name or image to promote a product. Previously, the NCAA had banned this practice.

Even college coaches have been at odds over NIL. Tolley pointed out how University of Alabama Coach Nick Saban, concerned that NIL could be used as a recruiting tool, has contended recently that Texas A&M attracted their recent recruiting class with NIL money, something which the NCAA does not allow.

Tolley has maintained that the Athletic Association, a private entity that does not accept public money, is not the proper agency to face the complaint — rather, it should be the University System of Georgia Board of Regents.

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According to Tolley, the university provides NIL information on student athletes to the Athletic Association, which then provides that information to the NCAA.

When the judge queried why the newspaper wanted access to the NIL information on athletes, Hudson explained it was for the “public benefit."

Tolley argued student-athletes have a right to privacy and these NIL contracts are made with an independent third party and not the university. The Athens lawyer likened it to the lottery, where a winner can choose to allow his identity to be known or kept secret.

The student athletes are allowed in the negotiations for an NIL to use a "professional representative, athletic agent or attorney," according to state code.

Hudson agreed the Athletic Association was a private entity, but because it maintains or receives documents on behalf of a public agency, that information is subject to the open records act.

Hudson also cited previous court ruling involving a Macon Telegraph suit that maintains the Athletic Association is subject to the open records act.

A key issue, according to the Augusta lawyer who has long worked for the Georgia Press Association, is if the Family Education Rights and Privacy Act (FERPA) gives UGA Athletics an “out” on releasing the records. FERPA protects the privacy of educational records of students.

The NIL records, according to Hudson, are not records on a student’s educational matters.

Attorney Devin Smith, who assisted Tolley, also asserted that NIL contracts were not a government deal and not in the public interest.

This article originally appeared on Athens Banner-Herald: Oconee judge hears UGA NIL open records complaint filed by newspaper