A Dane County Circuit Court judge dismissed a lawsuit against the University of Wisconsin-Madison and the Wisconsin Foundation and Alumni Association (WFAA) on Aug. 26 for "failure to state a claim for relief," meaning that even if all allegations were true, they were insufficient for legal action.
The suit, filed in February by journalist Daniel Libit of Sportico, challenged UW-Madison’s denial of a records request for a Name, Image and Likeness (NIL) contract partnership between UW-Madison and consulting firm Altius. UW-Madison denied the records request because the WFAA, an independent 501(c)(3) organization, holds the contract.
The WFAA is the official fundraising and gift-receiving organization of UW-Madison but is not subject to open records requests like the university because of its status as a nonprofit.
"As long as you're a public university and receive public funding, your records and your business should be accessible to the public," Libit told The Daily Cardinal in May.
The judge did not rule whether the WFAA is subject to the same Wisconsin open records laws that apply to UW-Madison. Libit told the Milwaukee Journal Sentinel he is contemplating an appeal, but his lawyer said the case would not address whether the WFAA is subject to open records law because the dismissal was based on different grounds.
UW Foundation spokesperson Tod Pritchard declined to comment on the case's dismissal.
Libit’s concerns about transparency extend beyond this case. In an opinion article from May 8 titled “Wisconsin’s Altius deal shows how colleges hide what the public seeks,” he highlighted the difficulty in accessing WFAA records despite its significant role in university operations.
"If it requires this kind of effort to get a relatively prosaic NIL consultant contract, imagine the lengths schools are willing to go to keep the really interesting stuff hidden," Libit said in the article.
Libit said in other states, courts have found public university foundations subject to open records requests, and Wisconsin could follow suit. He also expressed concern that the WFAA might be used to shield university operations from public scrutiny.
UW-Madison, home to hundreds of student-athletes, has been expanding its NIL program. In September 2023, UW’s athletics department announced the appointment of an on-campus “NIL athlete marketing manager” as part of its ongoing relationship with Altius.
Libit has a history of suing public universities across the country for public records and believes university foundations, like the WFAA, are not entirely independent of the universities they support and should therefore be subject to public records laws.
"The alarming thing is if the Foundation is being used, ostensibly or legitimately, as the party to sign consulting contracts for the athletics department, that suggests that the University of Wisconsin probably is even more reliant on using its foundation than your normal public university," Libit told the Cardinal in May.
Ty Javier is a senior staff writer and photographer at The Daily Cardinal. He is an Economics major and has specialized in university and campaign finances, economic policy and transit.
