Governor vetoes bill to keep contracts with college athletes secret. Is a compromise possible?

By SCPA Attorney Jay Bender

The General Assembly rushed to pass legislation to keep from public view how millions of dollars of public funds will be divided among college athletes.  The bill, H. 4902, passed the House in three days without ever being assigned to a committee.  The Senate passed the bill after receiving live testimony only from athletics directors at Carolina, Clemson and Coastal Carolina.

The speed with which the bill was passed was extraordinary in two significant ways.  First, in the ordinary course of legislation, bills are assigned to committees.  Most often bills are then referred to subcommittees where subcommittee members receive testimony from witnesses of whom they can ask questions regarding the legislation.  Second, when a bill proceeds in the normal course through the committee and subcommittee process disagreements are often resolved by compromise.

There was no significant opportunity for testimony to note objections to the bill and no opportunity to discuss potential compromise.

In addition to keeping secret payments to athletes, the bill also keeps from the public information about how much revenue sharing money goes to each team.  We are talking about millions of dollars sheltered from public view by this bill.  Carolina and Clemson each has $20.5 million to divide among players and teams this year.  The amount increases next year and thereafter.

Revenue sharing between schools and athletes is the result of a lawsuit brought by athletes who saw that their name, image, likeness and labor was reaping millions for schools and coaches but a pittance for players.

Gov. Henry McMaster, long an advocate for public access to public records going back to his days as Attorney General, vetoed the legislation.  In his veto message, the Governor said he was willing to accept confidentiality (read secrecy) in player contracts but thought withholding information about the division of money among teams went too far.  The governor is correct.  No competing school is going to pump more money into a specific sport because it learns what our universities are spending.  South Carolina schools are not the market-maker here.

I would like to offer a proposed compromise.  Rep. Justin Bamberg made a compelling argument that disclosing the amount of money each individual player would receive would in many instances expose a player to fraud or worse.  The athletics directors argued that if competing schools knew how much a star player was making, the player could be “poached” by a school willing to pay more money.  In the real world players negotiating to change schools, or agents for the athletes, will disclose to the prospective school the amount of money the athlete is making.  The argument by the schools doesn’t withstand scrutiny, but it creates a political reality that must be acknowledged.

So, what is the compromise solution?  The model exists already.  Coaches sign multiyear contracts with clauses that require the coach to pay money to the school to purchase or “buyout” the time remaining on the contract if the coach wishes to leave for greener pastures.  Sign players to multiyear contracts with buyout provisions that will make “poaching” more expensive.  If a school is unwilling to enter into a multiyear contract, it has to accept the consequences that an athlete might seek more money or better benefits after a one-year contract expires.

With respect to individual player confidentiality, redact the name of the athlete from the contract for so long as the athlete is under contract or enrolled in school.  Thereafter, the contract in its entirety is available for public inspection and copying just like the contracts with coaches, athletics directors and others employed at public institutions.  A similar plan exists where public bodies are negotiating to purchase property.  The documents relating to the negotiations are withheld from the public until the deal is completed or falls through.

Consideration of a compromise might enhance public confidence that our legislators are conducting themselves as representatives and not rulers.

Jay Bender is a retired University of South Carolina professor and media lawyer who represents the S.C. Press Association and its newspapers.