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Forget About FERPA: How FOIA Protects Student-Athlete Privacy in the NIL Era

Posted by on Thursday, January 18, 2024 in Articles, Volume 26, Volume 26, Issue 2.

Kamron Cox | 26 Vand. J. Ent. & Tech. L. 297 (2024)

The start of the name, image, and likeness (NIL) era stirred public fervor about the new earning potential of high-profile student-athletes. Since institutional policies and state laws governing NIL require student-athletes to broadly disclose information about their NIL activities to their respective institutions, the several state laws that follow the approach of the federal Freedom of Information Act (FOIA) can jeopardize the privacy of student-athlete NIL information. Major universities have repeatedly resorted to the unreliable defense of the Family Educational Rights and Privacy Act as well as sporadic state legislation to protect student-athlete privacy in the new NIL space. However, they have largely ignored the simpler solution embedded within their own state FOIA laws.

This Article argues that state FOIA laws bar student-athlete NIL information from public disclosure. FOIA laws serve the important societal function of informing the public about their government, but fundamental public misunderstandings about NIL based on a backwards misconception of the relationship between student-athletes and their institutions have caused the media to pry into details that are completely unrelated to any public interest. The recent shift toward student-athlete empowerment highlights the reality that student-athletes are autonomous actors, not simply children to be commandeered as an extension of coaches and other university personnel for public entertainment. The simplest way for universities to protect student-athletes in this new opportunity space is to reject FOIA requests for NIL information on the grounds that such requests propose an unwarranted invasion of personal privacy.

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