UW-Madison sued for NIL deal records
University says contract belongs to Foundation
A journalist sued the University of Wisconsin-Madison and its fundraising arm after the university denied his request for an athletic department consulting agreement that could shed more light on the name, image and likeness era of college athletics.
The lawsuit could also potentially answer a larger question about whether public university foundations are subject to Wisconsin’s public records law.
“There’s no good reason why UWMadison 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.
Libit, a UW-Madison alumnus who writes for Sportico, filed the lawsuit Wednesday after UW-Madison rejected his records request last fall. He asked for a copy of the contract UW-Madison had with Altius Sports Partners, a firm other large universities have hired to support student-athletes who can now profit from endorsement deals they strike.
UW-Madison told Libit it had no records because the UW Foundation had the contract. The foundation also didn’t provide the contract, saying it was a private entity exempt from Wisconsin’s public records law.
“The University has no legitimate reason to not keep a copy of the Altius
contract in its possession or to store that contract with the UW Foundation,” Libit’s complaint said. “Its sole purpose in doing so is attempting to hide the contract from the public.”
Other universities released contracts
Libit has a track record of prying athletics-related records from public universities. Of the seven lawsuits he’s filed, he’s either won in court or received a favorable settlement in all of them.
Other universities have released copies of their Altius contracts to Libit, including the University of Iowa, the University of Oklahoma and Rutgers University.
“UW was the only one to come back with a rejection,” he said. “That, to me, flashes red lights about how they and their foundation handle records requests.”
Libit’s lawsuit comes amid national secrecy over name, image and likeness deals. Schools across the country have refused to make college athletes’ NIL contracts public, deeming them “education records” under a federal student privacy law.
In a rare legal ruling, Utah universities were ordered to release NIL contracts last fall. The state Legislature there responded this month by introducing a bill exempting NIL deals from the public records law.
The Wisconsin Transparency Project, a nonprofit law firm focused on public transparency cases, filed the lawsuit on Libit’s behalf in Dane County Circuit Court on Wednesday. The firm, led by Tom Kamenick, has also worked with the Milwaukee Journal Sentinel on some cases.
A ‘quasi-governmental corporation’?
Libit’s lawsuit also argues that the UW Foundation, although legally distinct from UW-Madison, is itself a “quasi-governmental corporation” also subject to the public records law. The foundation appears on campus maps, can use the university’s logo and describes itself as “the official fundraising and gift-receiving organization for the University of Wisconsin-Madison.”
The judge could rule UW-Madison is obligated to release the contract but sidestep the question about whether the UW Foundation is subject to the public records law. A broader ruling in Libit’s favor could open the door to more public oversight of the foundation.
A Wisconsin appellate court has not ruled on whether a public university’s foundation is subject to the records law, the UW System reported in a 2018 policy document. Some courts in other states have ruled their their public university foundations are subject to their public records laws.