[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4855 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
2d Session
S. 4855
To protect the rights of student athletes and to provide for
transparency and accountability with respect to student athlete name,
image, and likeness agreements, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 14, 2022
Mr. Wicker introduced the following bill; which was read twice and
referred to the Committee on Commerce, Science, and Transportation
_______________________________________________________________________
A BILL
To protect the rights of student athletes and to provide for
transparency and accountability with respect to student athlete name,
image, and likeness agreements, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Collegiate Athlete Compensation
Rights Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Athletic association.--The term ``athletic
association'' means any organization or other group that--
(A) has 2 or more conferences as members; and
(B) arranges, sets rules for, or regulates varsity
intercollegiate sports competition.
(2) Athletic department.--The term ``athletic department''
means a department at an institution responsible for sponsoring
1 or more varsity intercollegiate athletic programs.
(3) Appropriate committees of congress.--The term
``appropriate committees of Congress'' means--
(A) the Committee on Commerce, Science, and
Transportation and the Committee on Health, Education,
Labor, and Pensions of the Senate; and
(B) the Committee on Energy and Commerce and the
Committee on Education and Labor of the House of
Representatives.
(4) Booster.--With respect to an institution, the term
``booster'' means--
(A) an individual or entity that, directly or
indirectly, through any other individual or entity or
in any other manner--
(i) has provided a donation to obtain
season tickets for any varsity intercollegiate
athletic program at the institution that
exceeds the annual amount determined by the
Commission;
(ii) has made a financial contribution
directly to the athletic department or other
athletics management organization of the
institution in an amount that exceeds the
annual amount determined by the Commission;
(iii) is party to any agreement for use of
the trademarks of the institution in connection
with any varsity intercollegiate athletic
program under which the total payments exceed
such amount;
(iv) has made any combination of such
financial donations, contributions,
expenditures, or payments in connection with an
activity described in any of clauses (i)
through (iii), that, in the aggregate, exceed
such amount;
(v) has arranged or provided employment for
1 or more student athletes; or
(vi) has assisted, or been requested by an
employee of the institution to assist, in the
recruitment of a prospective student athlete;
and
(B) includes any entity, group or collective,
including any tax-exempt or nonprofit entity, that is
controlled by, or receives or has received 25 percent
or more of its funding or assets from, 1 or more
individuals or entities described in subparagraph (A)
of the institution.
(5) Certified agent.--The term ``certified agent'' means an
athlete agent (as defined in section 2 of the Sports Agent
Responsibility and Trust Act (15 U.S.C. 7801)), a contract
advisor, a financial advisor, a marketing representative, a
brand manager, or a similarly employed individual who is
certified by the Commission as being in full compliance with
all requirements established by the Commission--
(A) to represent a student athlete in a name,
image, and likeness agreement;
(B) to provide consulting services to a student
athlete with respect to a name, image, and likeness
agreement; or
(C) to recruit or solicit, directly or indirectly,
a student athlete--
(i) to engage in an activity described in
subparagraph (A) or (B); or
(ii) to represent or attempt to represent a
student athlete for the purpose of marketing
the name, image, or likeness of the student
athlete.
(6) Chair.--The term ``Chair'' means the Chair of the
Federal Trade Commission.
(7) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(8) Conference.--The term ``conference'' means any
organization that--
(A) is not an athletic association;
(B) has 2 or more institutions as members; and
(C) arranges championships, sets rules for, or
regulates varsity intercollegiate sports competition.
(9) Cost of attendance.--The term ``cost of attendance''--
(A) has the meaning given the term in section 472
of the Higher Education Act of 1965 (20 U.S.C. 1087ll);
and
(B) shall be calculated by the financial aid office
of an institution by applying the same standards,
policies, and procedures for all students at such
institution.
(10) Covered compensation.--
(A) In general.--With respect to a name, image, and
likeness agreement, the term ``covered compensation''
means any payment, remuneration, or benefit, including
cash, awards, gifts, and in-kind contributions, that--
(i) is provided by a third party to a
student athlete;
(ii) is commensurate with the market value
for the activity carried out under the name,
image, and likeness agreement; and
(iii) is not, or is not intended to be, a
recruiting inducement or compensation for
participation in a varsity intercollegiate
sport.
(B) Exclusion.--The term ``covered compensation''
does not include grant-in-aid.
(11) Grant-in-aid.--The term ``grant-in-aid'' means--
(A) tuition, room, board, books, fees, and personal
expenses paid or provided by an institution up to the
full cost of attendance;
(B) Federal Pell Grants and other State and Federal
grants unrelated to, and not awarded with respect to,
participation in varsity intercollegiate sports
competition;
(C) health insurance and the costs of health care
wholly or partly self-funded by an athletic
association, a conference, or an institution;
(D) disability and loss of value insurance that is
wholly or partly self-funded by an athletic
association, a conference, or an institution;
(E) career counseling or job placement services
available to all students at an institution; or
(F) payment of hourly wages and benefits for work
actually performed (and not for participation in a
varsity intercollegiate athletic program) at a rate
commensurate with the prevailing rate in the locality
of an institution for similar work.
(12) Image.--The term ``image'', with respect to a student
athlete, means a photograph, video, or computer-generated
representation that identifies, is linked to, or is reasonably
linkable to the student athlete.
(13) Institution.--The term ``institution'' means an
institution of higher education (as defined in section 101 of
the Higher Education Act of 1965 (20 U.S.C. 1001)).
(14) Likeness.--The term ``likeness'', with respect to a
student athlete, means--
(A) with respect to a student athlete of a sport
for which the student athlete has a jersey number, the
jersey number associated with the student athlete and
the sport in which the student athlete participates at
a particular institution during the period of the
participation of the student athlete in the sport at
the institution, if the jersey number is accompanied
by--
(i) a logo or color scheme that is clearly
associated with the institution; or
(ii) some other means by which the jersey
number is associated with the particular
student athlete; and
(B) with respect to any student athlete--
(i) the uniquely identifiable voice, catch
phrase, or nickname of the student athlete; or
(ii) any other mark that identifies or
distinguishes the student athlete.
(15) Loss of value insurance.--The term ``loss of value
insurance'' means insurance that protects the future contract
value of a student athlete from decreasing below a
predetermined amount due to significant injury or illness
suffered by the student athlete during the designated coverage
period of the insurance policy.
(16) Name.--The term ``name'', with respect to a student
athlete, means the first or last name, the nickname, or the
username on any internet platform of the student athlete when
used in a context that reasonably identifies the student
athlete with specificity or particularity.
(17) Name, image, and likeness agreement.--The term ``name,
image, and likeness agreement'' means a contract or similar
arrangement between a student athlete and a third party
regarding the commercial use of the name, image, or likeness of
the student athlete in exchange for covered compensation.
(18) Prospective student athlete.--The term ``prospective
student athlete'' means an individual attending an elementary
school or a secondary school (as such terms are defined in
section 8101 of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 7801)) who participates in a sport program.
(19) Publicity right.--The term ``publicity right''--
(A) means a right that is 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; and
(B) includes any right that is licensed under a
name, image, and likeness agreement.
(20) Student athlete.--The term ``student athlete'' means
any individual enrolled at an institution who participates as a
team member or competitor in varsity intercollegiate sports
competition sponsored by the institution.
(21) Third party.--The term ``third party'' means an
individual or entity that is not--
(A) an institution;
(B) an athletic department;
(C) an organization or a foundation that provides
financial support to an institution or athletic
department;
(D) a conference;
(E) an athletic association;
(F) a certified agent; or
(G) an employee of any such individual or entity.
(22) Varsity intercollegiate athletic program.--The term
``varsity intercollegiate athletic program'' means a sport
played at the intercollegiate level, administered by an
athletic department, for which eligibility requirements for
participation by student athletes are established by an
athletic association.
(23) Varsity intercollegiate sports competition.--The term
``varsity intercollegiate sports competition'' means a
competition involving 2 or more varsity intercollegiate
athletic programs sponsored by different institutions.
SEC. 3. STUDENT ATHLETE NAME, IMAGE, AND LIKENESS RIGHTS AND
PROTECTIONS.
(a) In General.--Except as provided in section 4, an athletic
association, a conference, or an institution, or any representative of
such an entity, shall permit a student athlete or a group of student
athletes--
(1) to market, or to earn covered compensation for the
value of, their name, image, or likeness; and
(2) to obtain or retain a certified agent for any matter or
activity relating to such covered compensation.
(b) Consent and Compensation for Group Use.--
(1) In general.--Subject to paragraph (2), a third party
may not use the name, image, or likeness of any group described
in subsection (a) to sell or promote any product or service
unless the third party obtains the written consent from each
member of the group for that purpose.
(2) Certain third party agreements with institutions,
conferences, and athletic associations.--
(A) In general.--Paragraph (1) shall not apply to a
third party that enters into an agreement with an
institution, a conference, or an athletic association
to produce or distribute live, archival, or delayed
audiocast or videocast of a varsity intercollegiate
sports competition of the institution, including--
(i) a commercial that promotes such a
competition; and
(ii) audio or video distributions of such a
competition.
(B) Rule of construction.--Nothing in this
paragraph may be construed to require an institution, a
conference, or an athletic associations to provide
compensation or payment to any student athlete for
appearing in an audiocast or videocast of a varsity
intercollegiate sports competition of an institution.
(c) Rescission of Agreements.--In the case of a student athlete who
no longer participates in a varsity intercollegiate athletic program,
the student athlete may rescind a name, image, and likeness agreement
with a remaining term of more than 1 year--
(1) without being held liable for breach; and
(2) with no obligation to return payments received before
giving notice of the rescission.
(d) Educational Resources.--The Commission shall make available on
a publicly accessible internet website of the Commission educational
resources for student athletes with respect to financial and contract
literacy and earning covered compensation for the commercial use of the
name, image, or likeness of the student athlete, which shall--
(1) generally describe the legal and business concepts to
be considered in licensing publicity rights; and
(2) include information concerning the implications of
contract provisions that may restrict a student athlete's
choice of institutions or bind the student athlete to long-term
arrangements.
SEC. 4. PROHIBITIONS ON CERTAIN ACTIVITIES OF INSTITUTIONS, BOOSTERS,
AND THIRD PARTIES.
(a) Restrictions on Earning Covered Compensation.--Except as
provided in a rule established in accordance with section 8, an
athletic association, a conference, or an institution may not--
(1) adopt or maintain a contract, rule, regulation,
standard, or other requirement that prevents or unduly
restricts a student athlete from earning covered compensation
for the use of the name, image, or likeness of the student
athlete;
(2) impose a speech restriction for student athletes that
is more stringent than any speech restriction imposed on other
students at the same institution;
(3) limit athletic opportunities for a student athlete
solely on the basis of the student athlete's commercial use of
his or her name, image, or likeness; or
(4) coordinate or cooperate with any other institution,
conference, or athletic association to limit payment offered to
a student athlete under a name, image, and likeness agreement.
(b) Classification of Student Athletes.--Notwithstanding any other
provision of Federal or State law, a student athlete shall not be
considered an employee of an athletic association, a conference, or an
institution with respect to the participation of the student athlete in
a varsity intercollegiate sports competition.
(c) Scholarships.--An institution, a conference, or an athletic
association may not revoke, reduce, or impose a condition on an
athletic scholarship of a student athlete based on the student athlete
having earned covered compensation or having obtained a certified agent
in accordance with this Act.
(d) Preventing Conflicts of Interest.--An institution, an athletic
association, a conference, or a business partner of such an entity may
not--
(1) represent a student athlete or prospective student
athlete in a name, image, and likeness agreement;
(2) arrange a name, image, and likeness agreement on behalf
of a student athlete or prospective student athlete;
(3) enter into a name, image, and likeness agreement with a
student athlete or prospective student athlete;
(4) regulate the representation of a student athlete or a
group of student athletes or a prospective student athlete or
group of prospective student athletes with respect to a name,
image, and likeness agreement; or
(5) engage in the certification or promotion of individuals
for such representation.
(e) Certified Agent Restriction.--
(1) In general.--A certified agent may not represent a
prospective student athlete in a name, image, and likeness
agreement if the prospective student athlete plans to enroll in
an institution and participate in a varsity intercollegiate
sports competition for such institution.
(2) Exclusion.--For purposes of this subsection, a family
member of a prospective student athlete shall not be considered
to be a certified agent with respect to representation of the
prospective student athlete.
(f) Conflicts With Contracts or Rules of Institution.--
(1) In general.--Except as provided in paragraph (2), a
third party may not enter into, or offer to enter into, a name,
image, and likeness agreement with a student athlete that
provides covered compensation if a provision of the name,
image, and likeness agreement conflicts with a provision of a
contract, rule, regulation, standard, or other requirement of
the applicable institution.
(2) Exception.--A third party may enter into, or offer to
enter into, a name, image, and likeness agreement with a
student athlete that conflicts with a provision of a contract,
rule, regulation, standard, or other requirement of the
applicable institution if--
(A) the institution consents, in writing, to the
name, image, and likeness agreement; or
(B) the contract, rule, regulation, standard, or
other requirement unduly restricts student athletes
from earning covered compensation for the use of the
name, image, or likeness of the student athlete, as
determined by the Commission.
(3) Disclosures.--
(A) Conflicts.--An institution asserting a conflict
described in paragraph (1) shall disclose to the
certified agent and the Commission each relevant term
of the contract, rule, regulation, standard, or other
requirement of the varsity intercollegiate athletic
program.
(B) Restrictions.--A certified agent asserting a
restriction described in paragraph (2)(B) shall
disclose to the Commission the nature of such
restriction.
(g) Agent Activities.--An individual may not carry out any agent
activity or representation of a student athlete with respect to a
student athlete name, image, and likeness agreement unless the
individual is a certified agent.
(h) Prohibited Agreements.--An athletic association, a conference,
or an institution may prohibit a student athlete from entering into a
name, image, and likeness agreement with a third party for the
promotion of gambling, tobacco, or alcohol products, or adult
entertainment.
SEC. 5. TRANSPARENCY AND ACCOUNTABILITY RELATING TO NAME, IMAGE, AND
LIKENESS AGREEMENTS AND STUDENT ATHLETE ENDORSEMENTS.
(a) Receipt of Covered Compensation.-- Not later than 5 days after
the date on which a student athlete receives covered compensation under
a name, image, and likeness agreement, the certified agent representing
the student athlete shall report to the institution--
(1) the receipt and amount of such covered compensation;
and
(2) the terms and conditions of the name, image, and
likeness agreement, including the name of each party to the
agreement.
(b) Written Consent Required.--An institution may not publicly
disclose any information with respect to a name, image, and likeness
agreement between a student athlete and a third party without the
express written consent of the student athlete.
SEC. 6. LIMITATION ON TRANSFER PENALTIES; PROHIBITION ON INDUCEMENTS.
(a) Limitation on Transfer Penalties.--An institution, an athletic
association, or a conference shall allow a student athlete to transfer
from one institution to another not less than once without losing or
delaying grant-in-aid opportunities or eligibility to participate in a
varsity intercollegiate sports competition if--
(1) not less than 7 days before transferring, the student
athlete provides to his or her institution notice of intent to
transfer; and
(2) the transfer does not occur during--
(A) the season of the varsity intercollegiate
sports competition of the student athlete; or
(B) the 60-day period before the commencement of
such season.
(b) Prohibition on Inducements.--
(1) In general.--An institution, an athletic association, a
conference, a booster, a third party, or any agent of such an
entity, may not offer or provide--
(A) a student athlete with any compensation or
benefit (other than grant-in-aid) that is--
(i) conditioned on the student athlete
enrolling in, maintaining enrollment in, or
transferring to a particular institution; or
(ii) intended to induce the student athlete
to enroll in, maintain enrollment in, or
transfer to a particular institution; or
(B) a prospective student athlete with any
compensation or benefit (other than grant-in-aid) that
is--
(i) conditioned on the prospective student
athlete enrolling in a particular institution;
or
(ii) intended to induce the prospective
student athlete to enroll in a particular
institution.
(2) Campus tours.--Notwithstanding paragraph (1), an
institution, an athletic association, or a conference may
provide to a student athlete or a prospective student athlete
reimbursement for expenses relating to campus tours or visits.
SEC. 7. ENFORCEMENT BY THE COMMISSION.
(a) Office of Sport.--
(1) Establishment.--Not later than 30 days after the date
of the enactment of this Act, the Chair shall--
(A) establish within the Commission the ``Office of
Sport'' (in this section referred to as the
``Office''); and
(B) appoint a Director of the Office (in this
section referred to as the ``Director'').
(2) Purpose.--The purpose of the Office is to assist the
Commission in protecting amateur, collegiate, and professional
athletes from unfair methods of competition and unfair or
deceptive acts or practices in or affecting commerce under the
Federal Trade Commission Act (15 U.S.C. 41 et seq.).
(b) Duties.--
(1) In general.--The Director shall engage in activities
that include--
(A) leading and coordinating the Commission's work
in furtherance of the purpose described in subsection
(a)(2);
(B) coordinating and consulting with the Bureau of
Consumer Protection of the Commission and the Bureau of
Competition of the Commission;
(C) developing guidance and recommendations; and
(D) organizing public workshops, issuing reports,
and providing educational materials.
(2) Oversight of name, image, and likeness rights and
protections.--With respect to the implementation of this Act,
the duties of the Office are as follows:
(A) To establish a process for hearing, addressing,
and resolving complaints, concerns, conflicts, and
grievances from student athletes, institutions,
conferences, athletic associations, certified agents,
and third parties alleging violations of this Act or
any rule or standard developed under this Act.
(B) To establish a certification process and set
and enforce standards for, and maintain a registry of,
certified agents.
(C) To determine the financial limits for boosters,
as described in clauses (i) and (ii) of section
2(4)(A).
(D) On an ongoing basis and as necessary, to gather
and compile information relating to the development and
status of the student athlete name, image, and likeness
market.
(E) To provide confidential guidance to student
athletes.
(F) To develop rules to carry out the activities
described in this paragraph.
(c) Enforcement Authority.--
(1) In general.--A violation of this Act or any rule or
standard developed pursuant to subsection (b)(2) shall be
treated as a violation of a rule defining an unfair or
deceptive act or practice prescribed under section 18(a)(1)(B)
of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
(2) Powers of the federal trade commission.--The Commission
shall enforce this Act and any rule or standard developed
pursuant to subsection (b)(2) in the same manner, by the same
means, and with the same jurisdiction, powers, and duties as
though all applicable terms and provisions of the Federal Trade
Commission Act (15 U.S.C. 41 et seq.) were incorporated into
and made a part of this Act.
(3) Nonprofit organizations.--Notwithstanding section 4 of
the Federal Trade Commission Act (15 U.S.C. 44) or any
jurisdictional limitation of the Commission, the Commission
shall also enforce this Act and any rule or standard developed
pursuant to subsection (b)(2) in the same manner provided in
paragraph (1), with respect to organizations not organized to
carry on business for their own profit or that of their
members.
(4) Penalties; privileges and immunities.--Any person who
violates this Act or any rule or standard developed pursuant to
subsection (b)(2) shall be subject to the penalties and
entitled to the privileges and immunities provided in the
Federal Trade Commission Act (15 U.S.C. 41 et seq.).
SEC. 8. ROLE OF ATHLETIC ASSOCIATIONS AND CONFERENCES.
Athletic associations and conferences may--
(1) establish rules, consistent with this Act and any rule
or standard developed under this Act;
(2) establish rules that prohibit payments of compensation
to prospective student athletes and student athletes by
institutions, conferences, and athletic associations; and
(3) enforce the rules established under paragraphs (1) and
(2) by declaring ineligible for a varsity intercollegiate
sports competition a student athlete or a prospective student
athlete who receives payments in violation of this Act or any
rule or standard developed under this Act.
SEC. 9. COMPTROLLER GENERAL REPORT ON HEALTH, SAFETY, AND EDUCATION
NEEDS.
(a) In General.--Not later than 2 years after the date of the
enactment of this Act, the Comptroller General of the United States
shall submit to the appropriate committees of Congress a report on the
health, safety, and education needs of student athletes.
(b) Contents of Report.--The report required by subsection (a)
shall include the following:
(1) An analysis of the current state of student athlete
health insurance coverage in the United States, including a
comparison of amounts and types of coverage offered by
institutions of varying sizes and resources.
(2) An analysis of the degree to which student athletes are
not covered for injuries or conditions related to their
participation in athletics.
(3) An analysis of the additional cost to institutions of
providing health insurance coverage to student athletes for
each year, up to 5 years, after graduation.
(4) An analysis of the need for health and safety standards
for varsity intercollegiate athletic programs.
(5) An analysis of the current authorities and activities
of the Department of Health and Human Services to determine
whether the Department of Health and Human Services possesses
the appropriate authority or expertise to develop and enforce
such health and safety standards.
(6) An analysis of the extent to which student athletes are
unable to complete their degree due to losing scholarship
support before graduation within 4 years.
(7) An analysis of the additional cost to institutions of
providing guaranteed scholarships for student athletes for each
additional year, up to 5 years, after a typical 4-year
enrollment.
SEC. 10. LIMITATION OF LIABILITY.
(a) In General.--An institution, a conference, and an athletic
association shall comply with the requirements of this Act and with any
rule or standard developed under this Act, but shall not be held liable
under any provision of Federal or State law for prohibiting a student
athlete or prospective student athlete from being paid by an
institution, conference, or athletic association or for prohibiting a
student athlete or prospective student athlete from being paid for the
commercial use of the name, image, or likeness of the student athlete
or prospective student athlete before the date of the enactment of this
Act.
(b) Rule of Construction.--Except as provided in subsection (a),
nothing in this Act or the fact or circumstances of the enactment of
this Act may be construed to or relied upon by any court--
(1) to alter the application of Federal or State antitrust
law to intercollegiate athletics;
(2) to imply the creation of any cause of action not
created expressly by this Act; or
(3) to retroactively create liability, or invalidate legal
defenses, related to aspects of intercollegiate athletics not
directly addressed by this Act.
SEC. 11. RELATIONSHIP TO STATE LAWS.
(a) In General.--No State or political subdivision of a State may
establish or continue in effect any law, regulation, rule, requirement,
or standard that governs or regulates the compensation, publicity
rights, employment status, or eligibility for competition of a student
athlete or prospective student athlete, including any provision that
governs or regulates the commercial use of the name, image, or likeness
of a student athlete or prospective student athlete;
(b) Unauthorized Use by a Third Party.--A State or political
subdivision of a State may establish and enforce laws that prohibit the
unauthorized use of the name, image, and likeness of a student athlete
or prospective student athlete by a third party.
SEC. 12. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated to the Commission such sums
as are necessary to carry out this Act.
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