Model Legislation - Name, Image, Likeness Pay

Model Legislation - Name, Image, Likeness Pay

 

SECTION 1.  Declarations

1. The Legislature seeks to help ensure college athletes have equal rights and economic freedoms afforded to all students and residents in the state of ______________.

2. The Legislature recognizes the disproportionate negative impact that economic and legal restrictions have on African American and female college athletes.

3. The commercial exploitation of college athletes’ name, image, and likeness rights is not required for school-based athletics; it is an optional, lucrative activity for which athletes should be fairly compensated by 3rd parties.

4. College sports is a $14 billion dollar industry with millionaire coaches and lucrative apparel deals that require college athletes to advertise for commercial interests.

5. Rules prohibiting college athlete compensation for use of name, image, and likeness rights, or athletics reputation do not bring forth competitive equity and cannot justify denying college athletes equal rights and economic freedom.

6. State legislatures have adopted or are pursuing legislation, to grant college athletes the right to secure professional representation, which includes their own group licensing representation; and the right to earn compensation for use of their name, image, and likeness beginning as early as July 1, 2020.

7. Federal court rulings recognize that a group licensing market for college athletes’ name, image, and likeness rights exists and declared the following:

  1. The NCAA, conferences, and schools sell valuable players group licensing rights to 3rd parties, but give players $0 in return.
  2. NCAA’s prohibition on athlete name, image, and likeness compensation violated federal antitrust law and deprives college athletes of compensation that they would otherwise receive.
  3. If the NCAA did not have a prohibition on athlete compensation for use of their name, image, and likeness, athletes would be able to create and sell group licenses;
  4. 3rd parties purchase groups of athletes’ name, image, and likeness rights for commercial purposes including for use in live game telecasts, sports video games, game rebroadcasts, advertisements, and other archival footage to ensure they have the legal right to use every athlete in a group of athletes.

8. In order to facilitate an efficient and effective college athlete group licensing market that avoids costly litigation, college athletes must have group licensing representation that can administer all college athletes’ group name, image, and likeness licensing rights.

9. Sports agents, financial advisors, and individuals and entities facilitating college athlete compensation for use of their name, image, or likeness rights and athletics reputation should be subject to certification standards to help prevent fraudulent and negligent activity that can harm college athletes.

10. College athletes’ group licensing representation, representation certification, and athlete financial skills development should be provided by a nonprofit organization with a long and consistent record demonstrating that college athlete well being is its top priority; and should not have a conflict of interest.

 

SECTION 2. Definitions

“Athlete” means an individual that participates or participated in intercollegiate sport for a postsecondary educational institution located in the state.  An individual’s participation in a college intramural sport or in a professional sport outside of intercollegiate athletics does not apply.

“Athletic association” means an entity with athletics governance authority and is comprised of postsecondary educational institutions and athletic conferences.

“Athletic conference” means an entity and/or a collaboration of entities such as the autonomy conferences that has/have athletics governance authority, is a member of an athletic association, and has members comprised of and/or competes against postsecondary educational institutions.

“Certification” means the process of developing enforcing professional and legal policies and practices.

“Group” means three or more athletes from the same sport.

“Group licensing” means an agreement or agreements to allow a 3rd party the right to use the name, image, and likeness rights and athletic reputation of a group of athletes.

“Postsecondary educational institution” means any campus of a public or a private postsecondary educational institution.

“3rd party” means any individual or entity other than a postsecondary educational institution, athletic conference, or athletic association.

 

SECTION 3. Resolution

The state of ____________ requests that any federal legislation regarding this act respect and permit _____________ college athletes' rights, protections, and other provisions included in this legislation.


SECTION 4. Legislation

Part A.

1. A postsecondary educational institution shall not uphold any rule, requirement, standard, or other limitation that prevents a student of that institution from fully participating in intercollegiate athletics without penalty and earning compensation as a result of the use of the student’s name, image, or likeness rights, or athletic reputation. Earning compensation from the use of a student’s name, image, or likeness rights, or athletic reputation shall not affect a student’s grant-in-aid or stipend eligibility, amount, duration, or renewal

2. For purposes of this section, a grant-in aid and/or a stipend from a postsecondary educational institution in which a student is enrolled is not compensation for use of a student’s name, image, and likeness rights, or athletic reputation; and a grant-in-aid or stipend shall not be revoked or reduced as a result of a student earning compensation pursuant to this section.

3. A postsecondary educational institution shall not interfere with or prevent a ______________ student from fully participating in intercollegiate athletics for obtaining professional representation in relation to contracts or legal matters, including, but not limited to, representation provided by athlete agents, financial advisors, or legal representation provided by attorneys.

4. A college athlete shall not enter into an apparel, equipment, or beverage contract providing compensation to the athlete for use of the athlete’s name, image, or likeness rights, or athletic reputation which requires a student to display a sponsor’s apparel, equipment, or beverage or otherwise advertises for the sponsor during official team activities if such provisions are in conflict with a provision of the athlete’s team contract.

5. A team contract of a postsecondary educational institution’s athletic program shall not prevent a college athlete from receiving compensation for using the athlete’s name, image, or likeness rights, or athletic reputation for a commercial purpose when the athlete is not engaged in official, mandatory team activities that are recorded in writing and made publicly available.  Such team activities may not exceed up to 20 hours per week during the season and up to 8 hours per week during the off-season.

6. An athlete with remaining intercollegiate athletics eligibility who enters into a contract providing compensation to the athlete for use of the athlete’s name, image, or likeness rights, or athletics reputation shall disclose the full contract to an official of the institution who is designated by the institution.  The institution and its designated official shall not disclose terms of an athlete's contract that the athlete and/or the athlete's legal representation deems to be a trade secret and/or non-disclosable.

7. An institution asserting a conflict described in Part A. 6. shall disclose to the athlete and the athlete’s legal representation, if applicable, the full contract they assert to be in conflict.  The college athlete and/or the college athlete's legal representative shall not disclose terms of an institution's contract that the institution deems to be a trade secret and/or non-disclosable.

 

Part B.

1. The state recognizes the National College Players Association (NCPA) as a longstanding 501c3 nonprofit advocacy organization with a mission to protect future, current, and former college athletes; and has an unprecedented record of advocating for the well-being of college athletes.  The NCPA has successfully sponsored multiple pieces of state of legislation requiring colleges to provide athletes with financial skills development, allow college athletes to secure professional and legal representation, and permit athletes to earn money for use of their name, image, and likeness rights and athletics reputation.

2. The NCPA shall serve as the exclusive entity to administer group licensing on behalf of athletes.

  1. Such rights shall be required for a 3rd party to use any group’s name, image and likeness rights or athletic reputation in the group licensing market which includes but is not limited to live athletic events that are streamed via the internet or televised, sports video games, athletic event rebroadcasts that are streamed via the internet or televised, advertisements, other archival footage, and via any platforms that have yet to be developed.

3. Postsecondary educational institutions that enter into commercial agreements that directly or indirectly require the use of a group license must conduct a financial development program of up to 12 hours in duration once per year for their athletes with content approved or produced by the NCPA.

4. The NCPA shall serve as the exclusive entity to administer certifications, which shall be required to operate in the state, for the individuals and entities below:

  1. Sports agents and financial advisors who represent or enter into an agreement with an athlete who has remaining intercollegiate athletics eligibility.
  2. Individuals and entities brokering compensation agreements for use of the name, image, or likeness rights and athletics reputation of an athlete with remaining intercollegiate athletics eligibility.
  3. Certification enforcement shall include an appeals process.

5. The NCPA shall have the option to distribute required informational materials and conduct up to two athlete meetings per year per postsecondary educational institution using facilities of postsecondary educational institutions participating in intercollegiate athletics.

  1. Postsecondary educational institutions shall help distribute informational materials as needed.
  2. Postsecondary educational institutions shall inform their athletes of such meetings and provide appropriate meeting space.

6. The NCPA shall report its group licensing, athlete financial skills development, and certification activities annually to the Department of Education, the state legislature, and governor.

7. Athlete attorney representation shall be by persons licensed by the state.

 

Part C.

1. This legislation shall apply only to contracts entered into, modified, or renewed on or after the enactment of this section.

2.  Athletes and the NCPA have the right to pursue private action against 3rd parties who violate this act through superior court, through a civil action for injunctive relief or money damages, or both.

  1. The court shall award court costs and reasonable reimbursement for attorneys’ fees to the prevailing plaintiffs in an action brought against a violator of this legislation.

3. Athletes, the NCPA, and state or local prosecutors seeking to prosecute violators shall not be deprived of any protections provided under ______________ law with respect to a controversy that arises in ______________; shall have the right to adjudication in ______________ a claim that arises in ______________.

4. The NCPA shall be exempt from liability regarding activities carried out in this act that are conducted in good faith.

5.  The provisions of this chapter are severable.  If any provision of this chapter or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

6.  Legal settlements cannot permit noncompliance with this act.

7. This chapter shall apply to any applicable agreement or contract newly entered into, renewed, modified, or extended on or after July 1, 2020.  Such agreements or contracts include but are not limited to the National Letter of Intent, an athlete’s financial aid agreement, commercial contracts in the athlete group licensing market, and athletic conference or athletic association rules or bylaws.

***States should make clear that violations of this legislation is a per se violation of their state antitrust law and should consider granting the Attorney General some discretion for penalties.