Text of MS HB 1030 (2021)

MISSISSIPPI LEGISLATURE 2021 Regular Session To: Universities and Colleges; Judiciary A By: Representative Huddleston House Bill 1030 AN ACT TO "MISSISSIPPI INTERCOLLEGIATE ATHLETICS COMPENSATION RIGHTS ACT"; TO DEFINE TERMINOLOGY; TO PROVIDE THAT A STUDENT-ATHLETE MAY EARN COMPENSATION FOR THE USE OF HIS OR HER NAME, IMAGE OR LIKES WHILE ENROLLED IN A POSTSECONDARY INSTITUTION AND OBTAIN AN CERTIFIED AGENT FOR MATTERS RELATING TO THAT COMPENSATION; TO PROHIBIT STUDENT-ATHLETES FROM EARNING COMPENSATION IN EXCHANGE OF HIS OR HER ABILITY OR PARTICIPATION IN INTERCOLLEGIATE ATHLETICS OR SPORTS COMPETITIONS; TO PROVIDE THAT A STUDENT-ATHLETE SHALL NOT BE DEEMED AN EMPLOYEE OR INDEPENDENT CONTRACTOR OF ANY ATHLETIC ORGANIZATIONAL ENTITY BASED ON HIS OR HER PARTICIPATION IN AN INTERCOLLEGIATE ATHLETIC PROGRAM; TO PROHIBIT POSTSECONDARY EDUCATIONAL INSTITUTIONS FROM UPHOLD REQUIREMENTS THAT RESTRICT A STUDENT-ATHLETES ABILITY TO RECEIVE COMPENSATION FOR THE STUDENT'S NAME, IMAGE OR LIKENESS; TO PROHIBIT ATHLETIC ORGANIZATIONAL ENTITIES FROM INTERFERING WITH A CONTRACT OR OTHER REQUIREMENTS THAT PREVENT A STUDENT-ATHLETE FROM RECEIVING COMPENSATION FOR HIS OR HER NAME, IMAGE OR LIKENESS OR PREVENTS A POSTSECONDARY EDUCATIONAL INSTITUTION FROM PARTICIPATING IN AN INTERCOLLEGIATE ATHLETIC PROGRAM AS A RESULT OF THE STUDENT-ATHLETE RECEIVING COMPENSATION OF HIS OR HER NAME, IMAGE OR LIKENESS; TO ALLOW POSTSECONDARY EDUCATIONAL INSTITUTIONS TO IMPOSE REASONABLE LIMITATIONS ON THE TIMES A STUDENT-ATHLETE MAY PARTICIPATE IN CERTAIN PROMOTIONAL ACTIVITIES RELATED TO THE LICENSE OR USE OF THE STUDENT'S NAME, IMAGE OR LIKENESS; TO PROHIBIT POSTSECONDARY EDUCATIONAL INSTITUTIONS FROM PREVENTING STUDENT-ATHLETES FROM OBTAINING PROFESSIONAL REPRESENTATION; TO REQUIRE PERSONS OBTAINED BY STUDENT-ATHLETES AS PROFESSIONAL REPRESENTATIVES TO BE REGISTERED AS ATHLETE AGENTS AND ATTORNEYS WHO PROVIDE LEGAL REPRESENTATION TO BE LICENSED BY THE MISSISSIPPI BAR ASSOCIATION; TO REQUIRE STUDENT-ATHLETES TO DISCLOSE CONTRACTS FOR COMPENSATION TO THE POSTSECONDARY EDUCATIONAL INSTITUTION OF ENROLLMENT THE EARLIER OF THREE DAYS OF ITS EXECUTION OR THREE DAYS OF THE NEXT COMPETITION; TO PROHIBIT CONFLICTS OF INTERESTS BETWEEN THIRD-PARTY LICENSEES AND STUDENT-ATHLETES; TO EXEMPT POSTSECONDARY EDUCATIONAL INSTITUTIONS FROM PRIVATE CAUSES OF ACTION FOR UNFAIR TRADE OR TORTIOUS INTERFERENCE; TO CREATE NEW SECTION 93-19-17, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT QUALIFYING INDIVIDUALS 18 YEARS OF AGE AND OLDER SHALL HAVE THE CAPACITY TO ENTER INTO BINDING CONTRACTS AFFECTING THEIR NAME, IMAGE AND LIKENESS WHILE PARTICIPATING IN COLLEGIATE SPORTS AS STUDENT-ATHLETES; TO PROVIDE THAT ANY LEGAL ACTION FOUNDED ON A STUDENT-ATHLETE'S NAME, IMAGE AND LIKENESS BY A QUALIFYING STUDENT-ATHLETE MAY BE BOUGHT IN THE STUDENT-ATHLETE'S OWN NAME; TO AMEND SECTION 73-42-3, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PRECEDING PROVISIONS; AND FOR RELATED PURPOSES. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI: SECTION 1. This act shall be known, and may be cited as the "Mississippi Intercollegiate Athletics Compensation Rights Act." SECTION 2. As used in this chapter, the following terms shall have the following meanings unless the context clearly indicates otherwise: (a) "Compensation" means any form of payment or remuneration, 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 the provisions of this act. For the purposes of this act, "compensation" shall not mean or include the following: (i) Tuition, room, board, books, fees and personal expenses that a postsecondary educational institution provides a student-athlete in accordance with the rules of the athletic association or conference of which the postsecondary educational institution is a member; (ii) 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; (iii) Any other financial aid, benefits or awards that a postsecondary educational institution provides a student-athlete in accordance with the rules of the athletic association or conference of which the postsecondary educational institution is a member; or (iv) 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. (b) "Image" means a picture of the student-athlete. (c) "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. (d) "Likeness" means a physical, digital or other depiction or representation of a student-athlete. (e) "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. (f) "Name, image and likeness agreement" means a contract or similar arrangement between a student-athlete and a third-party licensee regarding the commercial use of the name, image or likeness of the student-athlete. (g) "Publicity right" means any right that is: (i) Licensed under a name, image and likeness agreement; or (ii) Recognized under a federal or state law that permits an individual to control and profit from the commercial use of the name, image or likeness of the individual. (h) "Postsecondary educational institution" means a public university or community college or private university or college. (i) "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 or likeness. (j) "Student-athlete" means an individual who engages in, is eligible to engage in, or may be eligible in the future to engage in, 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. (k) "Third party licensee" means any individual or entity that licenses publicity rights or the use of name, image or likeness from any prospective or current student-athlete or group of student-athletes. The term "third-party licensee" shall not include any national association for the promotion or regulation of collegiate athletics, athletics conference or postsecondary educational institution. SECTION 3. (1) Except as provided in Section 4 of this act, a student-athlete may: (a) Earn compensation, commensurate with market value, for the use of the name, image or likeness of the student-athlete while enrolled at a postsecondary educational institution; and (b) Obtain and retain a certified agent for any matter or activity relating to such compensation. (2) No student-athlete may earn compensation in exchange for the student-athlete's athletic ability or participation in intercollegiate athletics or sports competition. (3) Notwithstanding any other provision of applicable law or agreement to the contrary, a student-athlete shall not be deemed an employee 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 4. (1) (a) Except as provided for under 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's name, image or likeness. 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 name, image or likeness 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 and federal laws or regulations regarding the award of financial aid at postsecondary educational institutions. (b) Except as provided for 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 (NCAA) 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 of a postsecondary educational institution from earning compensation as a result of the use of the student-athlete's name, image or likeness. 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 and likeness. Nothing in this act shall restrict a postsecondary educational institution from exercising its sole discretion to control the authorized use of its trademarks or logos or to determine a student-athlete's apparel, gear or other wearables during an intercollegiate athletics competition or university-sponsored event. (c) 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 and the National Junior College Athletic Association, shall not prevent or otherwise 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, or likeness. (2) 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 and the National Junior College Athletic Association, shall not, directly or indirectly: (a) Enter into, or offer to enter into, a name, image and likeness agreement with a prospective or current student-athlete; or (b) 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 or likeness. (3) (a) 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 and the National Junior College Athletic Association shall not prevent a student-athlete from obtaining professional representation in relation to name, image or likeness, or to secure a name, image and likeness agreement, including, but not limited to, representation provided by athlete agents or legal representation provided by attorneys. (b) Professional representation obtained by student-athletes must be from persons registered as athlete agents as provided in Section 73-42-1 et seq., of the Uniform Athlete Agent Law. Attorneys who provide legal representation to student-athletes must be licensed to practice law in the State of Mississippi and in good standing with The Mississippi Bar. (c) Athlete agents representing student-athletes shall comply with the Uniform Athlete Agents Law, established under Section 73-42-1, et seq., and the federal Sports Agent Responsibility and Trust Act, established under 15 USCS Sections 7801-7807, in their relationships with student-athletes. (4) 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. (5) A student-athlete who enters into a name, image and likeness agreement for compensation shall disclose the contract to a designated official of the postsecondary educational institution in which the student is enrolled. The disclosure shall be made within three (3) calendar days of the execution of the name, image and likeness agreement, or three (3) calendar days before the next scheduled intercollegiate athletics competition in which the student-athlete may participate, whichever occurs earlier in time. The postsecondary educational institution shall designate the official to whom the student-athlete must disclose these contracts. (6) A third-party licensee may not enter into, or offer to enter into, a name, image and likeness agreement with a student-athlete or otherwise compensate a student-athlete for the use of the student-athlete's name, image and likeness rights if a provision of the name, image and likeness agreement or the use of the student-athlete's name, image and likeness rights conflicts with a provision of a contract, rule, regulation, standard or other requirement of the postsecondary educational institution unless such contract or use is expressly approved in writing by the postsecondary educational institution. (7) (a) No postsecondary educational institution, booster, third-party licensee, or any other individual or entity shall provide a prospective or current student-athlete compensation or enter into a name, image and likeness agreement as an inducement for the student-athlete to attend or enroll in a specific institution or group of institutions. (b) No student-athlete shall enter into a name, image and likeness agreement or receive compensation from a third-party licensee relating to the name, image or likeness of the student-athlete: (i) Before the date on which the student-athlete enrolls at a postsecondary educational institution; or (ii) For the endorsement or promotion of gambling, sports betting, marijuana, tobacco or alcohol products, 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. (8) Nothing in this act shall be interpreted to modify any requirements or obligations imposed under Title IX of the Education Amendments of 1972 (20 USCS Section 1681, et seq.). SECTION 5. The following shall be codified as Section 93-19-17, Mississippi Code of 1972: 93-19-17. (1) All persons eighteen (18) years of age or older, if not otherwise disqualified, or prohibited by law, shall have the capacity to enter into binding contractual relationships affecting the use of their name, image or likeness while participating in intercollegiate sports as student-athletes. Nothing in this section shall be construed to affect any contracts entered into prior to the effective date of this act. (2) In any legal action founded on a student-athlete name, image or likeness contract entered into by a person eighteen (18) years of age or older, the person may sue in his or her own name as an adult and be sued in his or her own name as an adult and be served with process as an adult. (3) For purposes of this section: (a) "Intercollegiate sport" means a sport 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; and (b) "Student-athlete" means an individual who engages in, is eligible to engage in, or may be eligible in the future to engage in, any 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. SECTION 6. No postsecondary educational institution, athletic association or conference shall be subject to a private cause of action or any claim for damages of any kind under this act, including, without limitation, a claim for unfair trade or competition or tortious interference. No postsecondary educational institution, athletic association or conference shall be subject to a private cause of action or any 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, without limitation, sovereign immunity applicable to postsecondary educational institutions. SECTION 7. Section 73-42-3, Mississippi Code of 1972, is amended as follows: 73-42-3. In this chapter: (a) "Agency contract" means an agreement in which a student-athlete authorizes a person to negotiate or solicit on behalf of the student-athlete a professional-sports-services contract, an endorsement contract, compensation for the use of the student-athlete's name, image or likeness, or enrollment at any educational institution that offers an athletic scholarship to the student-athlete. (b) "Athlete agent" means an individual who enters into an agency contract with a student-athlete or, directly or indirectly, recruits, induces or solicits a student-athlete to enter into an agency contract. The term does not include a spouse, parent, sibling, grandparent or guardian of the student-athlete or an individual acting solely on behalf of a professional sports team or professional sports organization. The term includes an individual who represents to the public that the individual is an athlete agent. (c) "Athletic director" means an individual responsible for administering the overall athletic program of an educational institution or, if an educational institution has separately administered athletic programs for male students and female students, the athletic program for males or the athletic program for females, as appropriate. (d) "Contact" means a communication, direct or indirect, written or oral, between an athlete agent and a student-athlete, to recruit, induce or solicit the student-athlete to enter into an agency contract. (e) "Endorsement contract" means: (i) An agreement under which a student-athlete is employed or receives consideration or anything of value for the student-athlete's publicity, reputation, following * * *, or fame obtained because of the student-athlete's athletic ability or performance; and (ii) An agreement under which a student-athlete receives compensation, consideration or anything of value for the use of the student-athlete's name, image or likeness. (f) "Intercollegiate sport" means a sport 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. (g) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency or instrumentality; public corporation, or any other legal or commercial entity. (h) "Professional-sports-services contract" means an agreement under which an individual is employed or agrees to render services as a player on a professional sports team, with a professional sports organization, or as a professional athlete. (i) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. (j) "Registration" means registration as an athlete agent pursuant to this chapter. (k) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. (l) "Student-athlete" means an individual who engages in, is eligible to engage in, or may be eligible in the future to engage in, a sport for a professional sports team or in any intercollegiate sport at any 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. SECTION 8. This act shall take effect and be in force from and after July 1, 2021.