I look at many things through a Foreign Corrupt Practices Act lens. It’s an occupational hazard I guess.
Recently, Wisconsin Governor Tony Evers (D) signed into law a bill relating to among other things “name, image, and likeness rights for University of Wisconsin System student athletes.”
Technically, the law allocates nearly $15 million to the University of Wisconsin to help fund facility debt service with the goal of freeing up funds for the University to pay athletes through new revenue-sharing agreements.
In signing the bill, Governor Evers said “I believe that greater flexibility is necessary to ensure this funding can be used effectively and allow the [University] system to maximize the state’s investment.”
Does this mean that a 21 year-old University of Wisconsin athlete who receives taxpayer money is a Wisconsin public official on par with the Governor and other traditional bona fide state government officials?
This seems preposterous and in fact the law specifically states: “A student athlete who enters into an agreement … to receive compensation for use of the student-athlete’s name, image, or likeness is not an employee of the [University] system because of the agreement.”
Moreover, the law states: “To protect competitive interests and student privacy, records relating to [NIL agreements or the “generation, deployment, or allocation of revenue generated by an intercollegiate athletic program] are not subject to public inspection, copying, or disclosure” under the state’s open records laws.
In other words, the University doesn’t want the golden ground squirrels of Minnesota (or any other competitor) to have access to this information.
In the FCPA context, the DOJ and SEC consider various entities such as state-owned or state-controlled enterprises to be “instrumentalities” of a foreign government such that employees of such entities are deemed “foreign officials” under the FCPA.
It’s a position that has no support in the FCPA’s extensive legislative history. (See here). Moreover, the only appellate court decision on the issue – U.S. v. Esquenazi which articulated a control and function test – is flawed in many respects. (See here).
If the above example concerning the University of Wisconsin is not enough of a Friday teaser for you, consider as well.
According to reports, “St. Louis University received a significant NIL donation from Saudi Aramco CEO Amin Nasser that enabled them to retain head coach Josh Schertz, per source. […] Schertz was close to accepting an offer from Kansas State before SLU stepped in with a more lucrative offer.”
