The bill updating Colorado’s laws on public collegiate sports “name, image and likeness” (NIL) passed the House Education Committee Thursday, but not without significant opposition.

House Bill 1041 would allow a public institution of higher education or athletic association to compensate a student-athlete for using their name, image, or likeness in branding or marketing for the institution. HB 1041 passed on a 9-4 vote and now heads to the full House.

But the bill’s second section, carving out a new exception to the state’s open records law, has drawn the most scrutiny.

The bill is being run at the behest of the University of Colorado, which is in the House district of Rep. Lesley Smith, D-Boulder.

Thursday’s hearing featured several amendments tied to the concerns over the information released about student-athletes who sign NIL contracts.

According to Jeff Roberts of the Colorado Freedom of Information Coalition, however, the amendments released before Thursday’s hearing would have made any information on an NIL contract little more than a blank document.

Smith swapped that amendment on Thursday for another. Still, it did little to tamp down the concerns raised by House Assistant Majority Leader Jennifer Bacon, D-Denver, an attorney who raised concerns about the transparency issue in last week’s hearing.

The amendment Smith introduced would have kept private not only the student-athletes’ name, address, email, phone number, and birth date but also “financial information,” which the bill as introduced does not define. That drew concerns from Bacon and Rep. Anthony Hartsook, R-Parker.

Smith said she didn’t know what that would mean, but she “assumed” it would be licensing fees, although she acknowledged it wasn’t spelled out in the amendment.

“If we’re going to approve the amendment without knowing what that definition is, I’m not good with that,” Hartsook said.

Bacon said that if the bill’s definition of financial information isn’t understood, it will be addressed “in court.”

According to Smith, the language of financial information is like that of eight other states.

However, the Washington Post reported last October that 24 states do require public universities to disclose NIL deals. Another 26 states, including Colorado, require that student-athletes disclose those deals to their athletic departments. The Post reported that CU Quarterback Shedeur Sanders had NIL deals with Google, KFC and Overtime valued at $400,000. 

But the Post also noted, based on comments from the University, that CU’s NIL records “contain ‘a fraction’ of what athletes have received because ‘many’ athletes don’t disclose their NIL deals, despite a state law that requires them to do so.”

The concerns over a lack of definition of financial information prompted Smith to request a delay in working out another amendment. The first of the two amendments adopted on the issue initially included “financial information,” but without a definition of what that might mean.

The second, which was adopted on a 10-3 vote, struck out “financial information” from the original amendment and added “license fee” paid to the student-athlete or “prospective student-athlete.”

It wasn’t good enough to earn Bacon’s or Hartsook’s support for the amendments or the bill itself.

Hartsook’s question was what’s in a license fee, which the amendment did not define, and what the public could see.

Smith said anyone could see the total amount paid for all student-athletes by sport and gender but not for individual student-athletes. That’s contained in another amendment adopted Thursday, a report that public colleges or universities require on NIL spending to be sent to the state Department of Higher Education and the NCAA.

But Bacon said the amendments put the bill right back where it started. “The bulk of the bill, even with the amendment…is just a different way of saying the same thing,” she said.

Bacon noted that CU wants contracts sealed and will provide a template, but Smith said that template wouldn’t be developed until the bill passed.

Bacon also said she’s concerned about the impact on CORA, particularly regarding what happened to the law in the last few years at the state Capitol.

CORA is an important tool, along with public procurement law, to help the public understand how money is being spent by the state’s public institutions, Bacon said.

Regarding the university’s concern over competition, Bacon noted that universities constantly compete for faculty or broadcast rights. She pointed out that universities pay high dollars to get great professors, and those contracts and amounts are made public.

Bacon said she’s a big advocate for contracts. While she appreciates CU’s desire to keep the NIL contracts confidential for competitive reasons, she indicated that it might be unfair to the student-athletes and could put them in an unfair negotiating advantage if they don’t know what they’re competing for. Student-athletes want to be able to advocate for themselves to get more as well, she said, and they can’t do that when the contracts are sealed.