Alabama Crimson Tide among schools to not disclose NIL data

WHEN ALABAMA'S NICK Saban and Texas A&M's Jimbo Fisher traded barbs this year over payments to college football players through name, image and likeness deals, Saban called for transparency, and Fisher said his team was an open book.

"I have nothing to hide. I have nothing to hide. And our program has nothing to hide," Fisher said at a May 19 news conference. "Be interesting if everyone could say that."

Saban, who had accused Texas A&M of having "bought every player" during recruiting, advocated for transparency on May 31: "I'm all for players making as much as they can make," he said. "I also think we've got to have some uniform transparent way to do that."

ESPN sought to take the coaches and other universities up on the notion that NIL information should be more transparent, asking a sampling of 23 universities -- 20 from Power 5 conferences -- to release their NIL-related documents or data. Across the board, schools provided few to no records. In the case of Saban's Alabama, the university declined to release any information. And at Fisher's A&M? The university said it would provide hundreds of records, but still hasn't; records that officials did release omitted financial terms, athletes' names and sports; and though A&M did end up releasing a per-sport breakdown, it came months later after ESPN made a subsequent request.

No uniform NIL transparency or deal-disclosure rules exist, meaning the only way to get any kind of picture of what's happening in the marketplace is by cobbling together incomplete and unverifiable figures from public statements from athletes, the companies they endorse, and others. Some of that information, though, revolves around an athlete's marketplace value as opposed to what they're actually earning. Even NCAA officials, who have at times been denied access to school records, told ESPN they've found instances in which numbers shared publicly are exaggerated or inaccurate.

As such, it's nearly impossible to identify trends and outliers that might point to inequities in the way schools are promoting or supporting their athletes across sports, gender and race; whether athletes are treated fairly if a school has a competing interest with a company or donor; or whether schools are ensuring athlete deals abide by state and NCAA NIL rules and aren't exploitative. For athletes and recruits, some information -- even anonymous, aggregate figures that give an overview of the market -- could help them assess whether their own NIL offers are fair.

SINCE JULY 2021, when college athletes became able to profit off their name, image and likeness, thousands of athletes have inked deals -- some for hundreds of thousands of dollars -- but there's little to no oversight of the market. NCAA rules say schools must ensure deals aren't used as recruiting incentives, but the rules do not specifically require schools to track detailed information. The degree to which schools are allowed to be involved in facilitating endorsements or gathering data varies by state.

Starting in May, ESPN filed requests with 23 universities for NIL records, seeking not only compensation amounts but any records that show aggregate totals. In addition, ESPN sought NIL reports submitted to the NCAA, an athletic conference or any state or federal regulatory agency.

ESPN selected schools that reflect various regions, conferences, and state NIL and open records laws.

Alabama, Central Florida, Florida, Iowa, Iowa State, Louisiana State and Mississippi denied requests and provided no records. As of Friday, Florida State, Oklahoma State, UCLA and Washington State have acknowledged receiving ESPN's request, but have not yet agreed or declined to provide records.

In their denials, most schools cited the Family Educational Rights and Privacy Act, a federal law that exempts a student's education record from disclosure to a third party. ESPN sent a follow-up email to several schools explaining how federal student privacy laws allow them to release records if students' identifying information were removed or redacted, but few schools budged.

Days after Fisher stated that his program has "nothing to hide," he chided a local reporter who asked about NIL deals for football players: "You're news. You're media. I'm asking you, did you do your research? ... Nobody wants the truth," Fisher said May 22.

So, on May 23, ESPN asked Texas A&M for records that would show NIL figures with the names of companies, compensation amounts or other categories, or for any report with aggregate totals. On June 7, Texas A&M offered to provide copies of 490 contracts to ESPN, but with names, sport, company and dollar amount redacted, for a processing fee of $1,470.06. The school offered no other records with NIL totals.

ESPN paid the fee in June, but as of Oct. 6, the university has produced only 47 contracts.

Texas A&M released aggregate data only when another reporter, from the Bryan-College Station Eagle, requested it in August -- three months after ESPN's request. The data, which the school gave to ESPN after yet another request, showed football players received $3.4 million in NIL deals, 81% of the almost $4.2 million for all athletes from July 1, 2021, to Aug. 1, 2022, and far above second-place men's basketball deals at $472,735. The women's team with the most in deals was softball, with $35,337.

When asked why Texas A&M didn't provide the aggregate data to ESPN in response to its initial request, the school's open records coordinator, Tricia Bledsoe, wrote that the information was created after ESPN's request submitted in May but before the Eagle submitted its request Aug. 17. The metadata of the document that Texas A&M sent to ESPN, however, show it had been created on Aug. 31. When asked about this discrepancy, Bledsoe said the "information existed before the request and was put into the provided document."

ESPN filed a request with Alabama in August for records pertaining to athlete NIL deals -- even if they were merely aggregate reports or documents without student identities. University of Alabama policy requires athletes to disclose any NIL agreement to the school. Alabama did not provide any records, writing that there were "no responsive public documents."

The University of Maryland provided the most in-depth response, sharing a spreadsheet showing individual transactions with the name of the business, the paid-for activity (for example, social media post or video rights), the dollar amount, date and sport.

Maryland's data, which ranged from July 2021 to July 2022, showed 81 transactions for football players totaling $199,709, followed by 18 transactions for field hockey players for $17,853. Maryland athletes were paid the most for social media posts ($139,422), but the three autograph deals listed were the most lucrative, averaging $5,933 -- each for football players. Social media deals were worth about $684 on average.

Other schools responded to ESPN's request with a range of information:

THE NCAA INITIALLY planned to be far more prescriptive in how it regulated the industry but abandoned those plans to avoid antitrust litigation. The association also wanted to establish a third-party administrator to gather NIL data and act as a clearinghouse but also called off that plan in the wake of the U.S. Supreme Court raising concerns about the NCAA violating antitrust laws.

Numbers released by athletes or companies can't always be trusted, said Jonathan Duncan, the NCAA's vice president of enforcement, who gets access to the underlying contracts for college athletes -- only if schools volunteer them -- to determine whether the deals were arranged within NCAA rules.

"In more than a few instances, after a thorough investigation where we have had cooperation of parties and we have had credible testimony from individuals with personal knowledge, sometimes the numbers that are reported are not the numbers," he said, or the terms of the deal were misrepresented. "I'm not prepared to say that every number reported is false. But what we have found is that not everything that's reported is true."

The NCAA itself has even been denied NIL documents, according to a July report from On3. This year, the NCAA asked Oregon for details on contracts between athletes and companies organized by the Division Street collective -- an organization that pools money from boosters and businesses to offer endorsement or service contracts to athletes -- associated with the school. Oregon denied the request, citing federal student privacy and business confidentiality clauses, according to On3.

The NCAA's national office -- which has struggled in recent years to maintain credibility with fans, lawmakers and its own stakeholders -- doesn't create the rules it enforces. Instead, member schools need to propose and vote for any rule changes that would increase transparency.

"Many schools want instant justice, full transparency and draconian penalties when it's some other school," Duncan said. "They don't necessarily want those same things when it's them."

David Schnase, NCAA vice president of academic and membership affairs, said building trust in the college sports industry is one reason to share more information about the NIL market with NCAA staff and the general public. He said the NCAA has a working group studying NIL issues, including transparency.

"The public is interested in college sports," he said, "and the more transparent we can be, the more equity that builds with people who care about this and the better it is for the industry in the long run."

ATHLETES WHO SPOKE to ESPN said they'd prefer some level of transparency in NIL data.

"I just like to decide if something feels worth it for me. And that's why I think more transparency needs to come into the NIL area," said University of Florida gymnast Leah Clapper, who founded a website to help college athletes navigate NIL issues. "If people are able to share their experiences working with brands and share how big their platform size is and how much they got paid ... that can really make a huge difference as a means for comparison. Like, wait a second, this person has a really similar platform as me and they're getting paid way more?"

For every deal Clapper gets, Florida's compliance office requires her to enter the details of the contract into an app run by INFLCR, a company that works with schools and athletes to track and use NIL data. (ESPN has a deal with INFLCR to have Andscape- and espnW-branded pages in the INFLCR app that will "help inform [college athletes] about upcoming news and ongoing events/promotions available for them to participate in.")

Companies such as INFLCR and competitor Opendorse have published aggregate data about the deals struck on their platforms during the first year of NIL rules. While the information has shed more light on the going rate for college athlete endorsements than any other source, it's not independently verified and provides an incomplete picture of the marketplace.

Clapper said she wouldn't want her name publicized with her actual contract details, "but I would absolutely want my data to be used in aggregate against all the other athletes and I think there are so many ways that would be really beneficial." She pointed to comparisons across sports and platform sizes, such as the size of an athlete's social media following, as being potentially useful.

Shortly after NIL deals became available for college athletes last year, Indiana University football player Dylan Powell posted a tweet noting that he was open to businesses contacting him for offers. Powell, who finished his MBA at Indiana this summer, said he wasn't a big name and wasn't expecting much, and he said the offer he appreciated most was a promotion for a local dog kennel, which offered him free boarding for Hoosier, his yellow Labrador retriever, during game weekends.

"I think it's totally OK for the schools to release the full aspect of what the entire team would be getting. I don't know that it would be appropriate to release individual contracts if they're not given the permission to do so. I wouldn't want that to divide a team, if, 'Oh, this guy is getting more,'" Powell said, adding that he thought it was appropriate for schools to use the figures as recruiting tools.

Athletes and their schools are, in many cases, competing for money from the same pool of marketing dollars from apparel companies, corporate partners and boosters. As a growing number of schools become more involved in facilitating deals for their athletes, transparency also might help athletes feel confident they're being treated fairly and help athletic departments navigate some inherent conflicts of interest.

"You could come up with a lot of situations where it's going to benefit everybody to be able to show what you're doing," said Bill Squadron, the former president of Bloomberg Sports and an assistant professor of sport management at Elon University. "In the long run, everyone benefits from understanding how the market is operating. It also gives people the ability to understand what may be outliers."

SOME SCHOOLS ARE exceedingly resistant to any disclosures, actually pushing for new laws that would prohibit the release of NIL information. LSU, for example, requested that state officials enact a law to make NIL information confidential, said Louisiana State Sen. Patrick Connick, the Republican who sponsored the bill.

In response to ESPN's requests for NIL information, LSU referred to that law, which went into effect three days after ESPN submitted its ask. The law states "any document" that "references the terms and conditions" of an NIL contract "shall be confidential and not subject to inspection, examination, copying or reproduction pursuant to the Public Records Law."

LSU officials didn't respond to a request for comment about the university's involvement in the creation of the bill.

Connick said NIL contracts are agreements between athletes and companies, and while LSU -- or any university -- can help facilitate the deals, LSU is not a party to the contract. When asked whether disclosing information would help assess whether a university was being fair in its dealings with athletes, Connick responded, "Why would a school discriminate one athlete over another? I don't know that's a valid point."

If athletes want to know what deals are being offered, they can just talk to fellow athletes, who can decide whether they want to share that information, he said.

"I think it's just people being nosy about, 'How much do you make?'" Connick said. "We're looking out for the students in the big picture, and I think making that a public record to be broadcast out throughout the nation is not in the best interest."

University of Kentucky men's basketball coach John Calipari testified in favor of a state law regulating NIL deals that included a specific open records exemption that kept information private. The law passed with bipartisan, near-unanimous support in the state legislature in March. The legislation, said Sen. Morgan McGarvey, a Democrat who co-sponsored the bill, protects athletes by giving them the ability to nullify contracts if and when they turn pro, and gives the university a role in reviewing contracts and connecting athletes with potential business partners.

"I've heard coaches say, 'Well, we'd rather not have a bill, we could go do whatever we want,'" Calipari told the legislature. "The problem with that is, you don't have any safe harbor. ... The NCAA could come back and say, 'You're wrong, we're not going to let you do that.'"

Amye Bensenhaver, a former assistant attorney general and co-founder of the Kentucky Open Government Coalition, said she thinks the hype and publicity of Calipari's testimony got in the way of critical thinking about the bill.

"There was such a 'rah-rah' session going on at the legislature, it was almost disgusting to watch it," she said. "Are you consistently enforcing the same policies relative to the types of products that can be endorsed? Or are you selectively deciding that this is inappropriate here but not there because this player is slightly less valuable to the university? They have absolutely erected an impenetrable barrier to these records."

A spokesperson for Kentucky said Calipari declined to comment for this story.

McGarvey said legislators were under a time crunch to get some legislation passed before the session ended in April and that it's possible the issue of disclosing records pertaining to NIL "could be revisited in part."

McGarvey said there could be a better argument for transparency if a university itself was negotiating contracts directly on behalf of the athlete, which is not how the current system works. As for ensuring equal treatment and opportunity, he said the legislation calls for NIL deals to be offered at a "prevailing market rate" based on a comparison with athletes of similar skill, experience and fame in their sport.

"We want to protect, support, empower these student-athletes. And I think we have to strike a good balance between what is truly in the public's interest and what is protected under basic student privacy," he said.

Ramogi Huma, a former UCLA football player and executive director of the National College Players Association, a nonprofit advocacy group for college athletes, said he favors laws that don't require athletes to disclose their information because the laws allow athletes to enter into contracts with companies that require confidentiality clauses.

When asked whether transparency could help determine whether universities are acting equitably toward students, he said there's "definitely merit" in that issue and that he could see a need for reporting that would provide aggregate figures, perhaps broken down by gender and race. But, Huma added, "usually discrimination suits are brought because something becomes apparent, not necessarily because everything is transparent, by default."

U.S DEPARTMENT OF Education Secretary Miguel Cardona said in an interview with ESPN this spring that he's looking at NIL deals in the context of Title IX, the federal gender equity law that requires schools provide equal access to students regardless of gender.

"Some of the concerns I have is that it's going to be the male athletes getting paid and [the] just-as-committed, just-as-hard-working women athletes, not. ... Universities must adapt and create structures that are monitoring this, that are communicating what they're doing to proactively create equity," he said.

He said it's possible that NIL deals might be part of the information schools are required to report to the federal government but didn't specify how his department or the government would mandate that.

"I think we have an opportunity here to really learn from maybe the past and create structures here, or promote structures at the federal level that could be visited at the state, at the college level, that ensure equity, that ensure access," he said.

ESPN's Abbey Lostrom and researcher John Mastroberardino contributed to this report.