SB2338ham001 102ND GENERAL ASSEMBLY

Rep. Kambium Buckner

Filed: 5/12/2021

10200SB2338ham001 LRB102 14260 CMG 26479 a

AMENDMENT TO SENATE BILL 2338

AMENDMENT NO. ______. Amend Senate Bill 2338 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Student-Athlete Endorsement Rights Act.

Section 5. Definitions. In this Act:

"Compensation" means anything of value, monetary or otherwise, including, but not limited to, cash, gifts, in-kind items of value, social media compensation, payments for licensing or use of publicity rights, payments for other intellectual or intangible property rights under federal or State law, and any other form of payment or remuneration, except as excluded under this Act. "Compensation" shall not include:

(1) tuition, room, board, books, fees, and personal expenses that a postsecondary educational institution provides to a student-athlete in accordance with the rules of the athletic association or conference of which the postsecondary educational institution is a member;

(2) Federal Pell Grants and other State and federal grants or scholarships unrelated to, and not awarded because of a student-athlete's participation in intercollegiate athletics or sports competition;

(3) any other financial aid, benefits, or awards that a postsecondary educational institution provides to a student-athlete in accordance with the rules of the athletic association or conference of which the postsecondary educational institution is a member; or

(4) the payment of wages and benefits to a student-athlete for work actually performed (but not for athletic ability or participation in intercollegiate athletics) at a rate commensurate with the prevailing rate for similar work in the locality of the student-athlete's postsecondary educational institution.

"Image" means any visual depiction, including, but not limited to, photograph, digital image, rendering, and video.

"Intercollegiate athletics program" means an intercollegiate athletics program played at the collegiate level for which eligibility requirements for participation by a student-athlete are established by a national association for the promotion or regulation of collegiate athletics.

"Likeness" means a physical, digital, rendering, or other depiction or representation of a student-athlete, including a student-athlete's uniform number or signature, that reasonably identifies the student-athlete with particularity.

"Name" means the first or last name or the nickname of a student-athlete when used in a context that reasonably identifies the student-athlete with particularity.

"Name, image, and likeness agreement" or "publicity rights agreement" means a contract or other written or oral arrangement between a student-athlete and a third party licensee regarding the use of the name, image, likeness, or voice of the student-athlete.

"Publicity right" means any right that (i) is licensed under a publicity rights agreement or (ii) is recognized under a federal or State law that permits an individual to control and benefit from the commercial use of the name, image, likeness, or voice of the individual.

"Postsecondary educational institution" means a public university or community college or private university or college.

"Social media compensation" means all forms of payment for engagement on social media received by a student-athlete as a result of the use of that student-athlete's name, image, likeness, or voice.

"Student-athlete" means a student currently enrolled at a postsecondary educational institution who engages in, is eligible to engage in, or may be eligible in the future to engage in, an intercollegiate athletics program at a postsecondary educational institution. If an individual is permanently ineligible to participate in a particular intercollegiate sport, the individual is not a student-athlete for purposes of that sport.

"Third party licensee" means any individual or entity that licenses publicity rights or the use of name, image, likeness, or voice from any prospective or current student-athlete or group of student-athletes. "Third party licensee" shall not include any national association for the promotion or regulation of collegiate athletics, athletics conference, or postsecondary educational institution.

Section 10. Compensation. Except as provided in Section 15:

(1) A student-athlete may earn compensation, commensurate with market value, for the use of the name, image, likeness, or voice of the student-athlete while enrolled at a postsecondary educational institution and obtain and retain a certified agent for any matter or activity relating to such compensation.

(2) A student-athlete may not earn compensation in exchange for the student-athlete's athletic ability or participation in intercollegiate athletics or sports competition or agreement or willingness to attend a postsecondary educational institution.

(3) Notwithstanding any other provision of law or agreement to the contrary, a student-athlete shall not be deemed an employee, agent, or independent contractor of an association, a conference, or a postsecondary educational institution based on the student-athlete's participation in an intercollegiate athletics program.

Section 15. Postsecondary educational institutions; limitations; prohibitions.

(a) Except as provided in this Act, a postsecondary educational institution shall not uphold any contract, rule, regulation, standard, or other requirement that prevents a student-athlete of that institution from earning compensation as a result of the use of the student-athlete's name, image, likeness, or voice. Any such contract, rule, regulation, standard, or other requirement shall be void and unenforceable against the postsecondary educational institution or the student-athlete. Compensation from the use of a student-athlete's name, image, likeness, or voice may not affect the student-athlete's scholarship eligibility, grant-in-aid, or other financial aid, awards or benefits, or the student-athlete's intercollegiate athletic eligibility. Nothing in this Act is intended to alter any State or federal laws, rules, or regulations regarding the award of financial aid at postsecondary educational institutions.

(b) Except as provided in this Act, an athletic association, conference, or other group or organization with authority over intercollegiate athletic programs, including, but not limited to, the National Collegiate Athletic Association, the National Association of Intercollegiate Athletics, and the National Junior College Athletic Association, shall not prevent, or otherwise enforce a contract, rule, regulation, standard, or other requirement that prevents a student-athlete at a postsecondary educational institution from earning compensation as a result of the use of the student-athlete's name, image, likeness, or voice.

(c) To protect the integrity of its educational mission and intercollegiate athletics program, a postsecondary educational institution may impose reasonable limitations on the dates and time that a student-athlete may participate in endorsement, promotional, social media, or other activities related to the license or use of the student-athlete's name, image, likeness, or voice. Nothing in this Act shall restrict a postsecondary educational institution from exercising its sole discretion to control the authorized use of its marks or logos or to determine a student-athlete's apparel, gear, or other wearables during an intercollegiate athletics competition or institution-sponsored event. A student-athlete may not receive or enter into a contract for compensation for the use of the student-athlete's name, image, likeness, or voice in a way that also uses any registered or licensed marks, logos, verbiage, name, or designs of a postsecondary educational institution, unless the postsecondary educational institution has provided the student-athlete with written permission to do so prior to execution of the contract or receipt of compensation. If permission is granted to the student-athlete, the postsecondary educational institution, by an agreement of all of the parties, may be compensated for the use in a manner consistent with market rates. A postsecondary educational institution may also prohibit a student-athlete from wearing any item of clothing, shoes, or other gear or wearables with the name, logo, or insignia of any entity during an intercollegiate athletics competition or institution-sponsored event.

(d) An athletic association, conference, or other group or organization with authority over intercollegiate athletics programs, including, but not limited to, the National Collegiate Athletic Association, the National Association of Intercollegiate Athletics, and the National Junior College Athletic Association, shall not enforce a contract, rule, regulation, standard, or other requirement that prevents a postsecondary educational institution from participating in an intercollegiate athletics program as a result of the compensation of a student-athlete for the use of the student-athlete's name, image, likeness, or voice.

(e) A postsecondary educational institution, athletic association, conference, or other group or organization with authority over intercollegiate athletics programs, including, but not limited to, the National Collegiate Athletic Association, the National Association of Intercollegiate Athletics, and the National Junior College Athletic Association, shall not directly or indirectly:

(1) enter into, or offer to enter into, a publicity rights agreement with a prospective or current student-athlete; or

(2) provide a prospective or current student-athlete or the student-athlete's family compensation in relation to the use of the student-athlete's name, image, likeness, or voice.

(f) A postsecondary educational institution, athletic association, conference, or other group or organization with authority over intercollegiate athletics programs, including, but not limited to, the National Collegiate Athletic Association, the National Association of Intercollegiate Athletics, and the National Junior College Athletic Association, shall not prevent a student-athlete from obtaining professional representation for purposes of this Act in relation to name, image, likeness, or voice, or to secure a publicity rights agreement, including, but not limited to, representation provided by athlete agents or legal representation provided by attorneys. A student-athlete shall provide the postsecondary educational institution with written notice and a copy of the agreement within 7 days of entering into a representation agreement with any individual for the purpose of exploring or securing compensation for use of the student-athlete's name, image, likeness, or voice.

Section 20. Agents; publicity rights; third party licensees.

(a) An agent, legal representative, or other professional service provider offering services to a student-athlete shall, to the extent required, comply with the federal Sports Agent Responsibility and Trust Act and any other applicable laws, rules, or regulations.

(b) A grant-in-aid, including cost of attendance, and other permissible financial aid, awards, or benefits from the postsecondary educational institution in which a student-athlete is enrolled shall not be revoked, reduced, nor the terms and conditions altered, as a result of a student-athlete earning compensation or obtaining professional or legal representation pursuant to this Act.

(c) A student-athlete shall disclose to the postsecondary educational institution in which the student is enrolled, in a manner and time prescribed by the institution, the existence and substance of all publicity rights agreements. Publicity rights agreements that contemplate cash or other compensation to the student-athlete that is equal to or in excess of a value of $500 shall be formalized in a written contract, and the contract shall be provided to the postsecondary educational institution in which the student is enrolled prior to the execution of the agreement and before any compensation is provided to the student-athlete.

(d) A student-athlete may not enter into a publicity rights agreement or otherwise receive compensation for that student-athlete's name, image, likeness, or voice for services rendered or performed while that student-athlete is participating in activities sanctioned by that student-athlete's postsecondary educational institution if such services or performance by the student-athlete would conflict with a provision in a contract, rule, regulation, standard, or other requirement of the postsecondary educational institution.

(e) No booster, third-party licensee, or any other individual or entity, shall provide or directly or indirectly arrange for a third-party to provide compensation to a prospective or current student-athlete or enter into, or directly or indirectly arrange for a third-party to enter into, a publicity rights agreement as an inducement for the student-athlete to attend or enroll in a specific institution or group of institutions. Compensation for a student-athlete's name, image, likeness, or voice shall not be conditioned on athletic performance or attendance at a particular postsecondary educational institution.

(f) A postsecondary educational institution may fund an independent, third-party administrator to support education, monitoring, disclosures, and reporting concerning name, image, likeness, or voice activities by student-athletes authorized pursuant to this Act. A third-party administrator cannot be a registered athlete agent.

(g) No postsecondary educational institution shall provide or directly or indirectly arrange for a third-party to provide compensation to a prospective or current student-athlete or enter into, or directly or indirectly arrange for a third party to enter into, a publicity rights agreement with a prospective or current student-athlete.

(h) No student-athlete shall enter into a publicity rights agreement or receive compensation from a third party licensee relating to the name, image, likeness, or voice of the student-athlete before the date on which the student-athlete enrolls at a postsecondary educational institution.

(i) No student-athlete shall enter into a publicity rights agreement or receive compensation from a third party licensee for the endorsement or promotion of gambling, sports betting, controlled substances, cannabis, a tobacco or alcohol company, brand, or products, alternative or electronic nicotine product or delivery system, performance-enhancing supplements, adult entertainment, or any other product or service that is reasonably considered to be inconsistent with the values or mission of a postsecondary educational institution or that negatively impacts or reflects adversely on a postsecondary education institution or its athletic programs, including, but not limited to, bringing about public disrepute, embarrassment, scandal, ridicule, or otherwise negatively impacting the reputation or the moral or ethical standards of the postsecondary educational institution.

Section 25. Term of student-athlete contract. A contract for the use of the student-athlete's name, image, likeness, or voice that is entered into while the student-athlete is participating in an intercollegiate sport at a postsecondary educational institution may not extend beyond the student-athlete's participation in the sport at the institution.

Section 30. Construction. Nothing in this Act shall be construed to modify any requirements or obligations imposed under Title IX of the Education Amendments of 1972.

Section 35. Liability. No postsecondary educational institution shall be subject to a claim for damages of any kind under this Act, including, but not limited to, a claim for unfair trade or competition or tortious interference. No postsecondary educational institution shall be subject to a claim for damages related to its adoption, implementation, or enforcement of any contract, rule, regulation, standard, or other requirement in compliance with this Act. This Act is not intended to and shall not waive or diminish any applicable defenses and immunities, including, but not limited to, sovereign immunity applicable to postsecondary educational institutions.

Section 99. Effective date. This Act takes effect upon becoming law or on July 1, 2021, whichever is later.".