College Athlete Economic Freedom Act

I 117TH CONGRESS 1ST SESSION H. R. 850 To establish name, image, likeness, and athletic reputation rights for college athletes, and for other purposes. IN THE HOUSE OF REPRESENTATIVES FEBRUARY 4, 2021 Mrs. TRAHAN introduced the following bill; which was referred to the Com- mittee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the juris- diction of the committee concerned A BILL To establish name, image, likeness, and athletic reputation rights for college athletes, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘College Athlete Eco- 4 nomic Freedom Act’’. 5 SEC. 2. DEFINITIONS. 6 In this Act: 7 (1) ATHLETE AGENT.—The term ‘‘athlete 8 agent’’ has the meaning given the term in section 2 9 VerDate Sep 11 2014 23:38 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H850.IH H850 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 850 IH of the Sports Agent Responsibility and Trust Act 1 (15 U.S.C. 7801). 2 (2) ATHLETIC REPUTATION.—The term ‘‘ath- 3 letic reputation’’ means, with respect to a college 4 athlete or prospective college athlete, the recognition 5 or fame of the athlete relating to the participation 6 or performance of the college athlete or prospective 7 college athlete in a sport. 8 (3) COLLEGE ATHLETE.—The term ‘‘college 9 athlete’’ means an individual who participates in or 10 is eligible to participate in an intercollegiate sport 11 for an institution of higher education. 12 (4) COMPENSATION.—The term ‘‘compensa- 13 tion’’— 14 (A) means any payment, remuneration, or 15 benefit provided to a college athlete or prospec- 16 tive college athlete in exchange for the use of 17 the name, image, likeness, or athletic reputation 18 of the college athlete or prospective college ath- 19 lete; and 20 (B) does not include— 21 (i) a grant-in-aid; or 22 (ii) a stipend scholarship from the in- 23 stitution of higher education in which a 24 college athlete is enrolled. 25 VerDate Sep 11 2014 23:38 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H850.IH H850 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 850 IH (5) GRANT-IN-AID.—The term ‘‘grant-in-aid’’ 1 means a scholarship, grant, or other form of finan- 2 cial assistance that is provided by an institution of 3 higher education to a college athlete for the college 4 athlete’s undergraduate or graduate course of study. 5 (6) IMAGE.—The term ‘‘image’’, with respect to 6 a college athlete or prospective college athlete, means 7 any photograph, video, or computer-generated rep- 8 resentation that reasonably identifies the college ath- 9 lete or prospective college athlete. 10 (7) INSTITUTION OF HIGHER EDUCATION.—The 11 term ‘‘institution of higher education’’ has the 12 meaning given the term in section 101 of the Higher 13 Education Act of 1965 (20 U.S.C. 1001 et seq.). 14 (8) INTERCOLLEGIATE ATHLETIC ASSOCIA- 15 TION.—The term ‘‘intercollegiate athletic associa- 16 tion’’ means any association, conference, or other 17 group or organization that— 18 (A) exercises authority over intercollegiate 19 athletics and the recruitment of college athletes 20 or prospective college athletes; and 21 (B) is engaged in interstate commerce or 22 in any industry or activity affecting interstate 23 commerce. 24 VerDate Sep 11 2014 23:38 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H850.IH H850 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 850 IH (9) LIKENESS.—The term ‘‘likeness’’, with re- 1 spect to a college athlete or prospective college ath- 2 lete, means the uniquely identifiable voice, catch 3 phrase, or any other mark that when used in a con- 4 text that reasonably identifies the college athlete or 5 prospective college athlete. 6 (10) NAME.—The term ‘‘name’’, with respect to 7 a college athlete or prospective college athlete, means 8 the first or last name, or a nickname, of the college 9 athlete or prospective college athlete when used in a 10 context that reasonably identifies the college athlete 11 or prospective college athlete. 12 (11) PROSPECTIVE COLLEGE ATHLETE.—The 13 term ‘‘prospective college athlete’’ means an indi- 14 vidual who— 15 (A) has not enrolled at an institution of 16 higher education; and 17 (B) may be recruited by an institution of 18 higher education. 19 (12) THIRD PARTY.—The term ‘‘third party’’ 20 means an individual or entity other than an institu- 21 tion of higher education or an intercollegiate athletic 22 association. 23 VerDate Sep 11 2014 23:38 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H850.IH H850 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 850 IH SEC. 3. ATHLETE RIGHTS TO MARKET NAME, IMAGE, LIKE- 1 NESS, AND ATHLETIC REPUTATION. 2 (a) RIGHT TO MARKET USE OF NAME, IMAGE, LIKE- 3 NESS, AND ATHLETIC REPUTATION.— 4 (1) IN GENERAL.—An institution of higher edu- 5 cation or intercollegiate athletic association may not 6 enact or enforce any rule, requirement, standard, or 7 other limitation that prevents college athletes or pro- 8 spective college athletes, individually or as a group, 9 from marketing the use of their names, images, 10 likenesses, and athletic reputations. 11 (2) COLLUSION.—An institution of higher edu- 12 cation may not coordinate with any other institution 13 of higher education or third party to limit the 14 amount of payment offered to a college athlete, pro- 15 spective college athlete, or group of college athletes 16 or prospective college athletes under a contract for 17 the use of the name, image, likeness, or athletic rep- 18 utation of the college athlete, prospective college ath- 19 lete, or group of college athletes or prospective col- 20 lege athletes. 21 (3) RIGHT TO COLLECTIVE REPRESENTA- 22 TION.—An institution of higher education or inter- 23 collegiate athletic association may not enact or en- 24 force any rule, requirement, standard, or other limi- 25 tation, or engage in conduct that prevents college 26 VerDate Sep 11 2014 23:38 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H850.IH H850 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 850 IH athletes from forming or recognizing, or interferes 1 with such formation or recognition of, a collective 2 representative to facilitate group licensing agree- 3 ments or provide representation for college athletes. 4 (4) GROUP LICENSING.—A third party may not 5 use the name, image, likeness, or athletic reputation 6 of any member of a group of college athletes to mar- 7 ket any product unless the third party obtains a li- 8 cense from the group for that purpose. 9 (5) GRANTS-IN-AID.—Receipt of compensation 10 for the use of the name, image, likeness, or athletic 11 reputation of a college athlete or prospective college 12 athlete shall not adversely affect— 13 (A) the eligibility or opportunity of a col- 14 lege athlete or prospective college athlete to 15 apply for a grant-in-aid; or 16 (B) the amount, duration, or renewal of 17 the grant-in-aid of a college athlete or prospec- 18 tive college athlete. 19 (6) EQUITABLE INSTITUTIONAL SUPPORT.—An 20 institution of higher education, an intercollegiate 21 athletic association, or a party affiliated with an in- 22 stitution of higher education or an intercollegiate 23 athletic association that provides direct or indirect 24 support to college athletes with respect to the mar- 25 VerDate Sep 11 2014 23:38 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H850.IH H850 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 850 IH keting of their names, images, likenesses, and ath- 1 letic reputations shall make such support accessible 2 to all college athletes in the applicable athletic pro- 3 gram, regardless of gender, race, or participating 4 sport. 5 (b) RIGHT TO REPRESENTATION.— 6 (1) ABILITY FOR COLLEGE ATHLETES TO RE- 7 TAIN REPRESENTATION.—An institution of higher 8 education or intercollegiate athletic association may 9 not prevent a college athlete or prospective college 10 athlete from fully participating in intercollegiate ath- 11 letics based on the college athlete or prospective col- 12 lege athlete having obtained professional representa- 13 tion with respect to a contract or legal matter, in- 14 cluding— 15 (A) representation provided by an athlete 16 agent or financial advisor; and 17 (B) legal representation provided by an at- 18 torney. 19 (2) PROHIBITIONS ON THE REGULATION OF 20 REPRESENTATION.—An institution of higher edu- 21 cation or intercollegiate athletic association may not 22 regulate the legal, financial, or agency representa- 23 tion of college athletes and prospective college ath- 24 letes with respect to the marketing of their names, 25 VerDate Sep 11 2014 23:38 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H850.IH H850 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 850 IH images, likenesses, or athletic reputations, including 1 the certification of such legal, financial, or agency 2 representation. 3 (c) PROHIBITION ON WAIVER.—A college athlete, a 4 prospective college athlete, an institution of higher edu- 5 cation, an intercollegiate athletic association, or any other 6 person may not enter into any agreement or a legal settle- 7 ment that waives or permits noncompliance with this Act. 8 SEC. 4. GRANTS FOR ANALYZING NAME, IMAGE, LIKENESS, 9 AND ATHLETIC REPUTATION MONETIZATION. 10 (a) DEFINITIONS.—In this section: 11 (1) ELIGIBLE ENTITY.—The term ‘‘eligible enti- 12 ty’’ means— 13 (A) a business in the United States; 14 (B) a public or private education and re- 15 search organization in the United States; or 16 (C) a consortium of entities described in 17 subparagraph (A) or (B). 18 (2) SECRETARY.—The term ‘‘Secretary’’ means 19 the Secretary of Commerce. 20 (b) GRANTS AUTHORIZED.—Annually, the Secretary 21 may award a grant to, or enter into a contract or a cooper- 22 ative agreement with, an eligible entity for the purpose 23 of conducting a market analysis of the monetization of the 24 VerDate Sep 11 2014 23:38 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H850.IH H850 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 850 IH rights granted to college athletes under this Act during 1 the 1-year period preceding the date of the analysis. 2 (c) REQUIREMENTS.—An eligible entity that receives 3 a grant or enters into a contract or cooperative agreement 4 to conduct an analysis under subsection (b) shall— 5 (1) make the analysis and information relating 6 to the analysis publicly available, including— 7 (A) the surveys and interviews the eligible 8 entity conducted during the course of the anal- 9 ysis; and 10 (B) estimates of the compensation received 11 by college athletes during the 1-year period pre- 12 ceding the date of the analysis as a result of 13 the monetization of the names, images, 14 likenesses, and athletic reputations of those col- 15 lege athletes, separated by— 16 (i) gender; 17 (ii) race; and 18 (iii) sport; and 19 (2) provide recommendations to the Secretary 20 to address any disparate estimates described in 21 paragraph (1)(B). 22 (d) PUBLIC AVAILABILITY OF RECOMMENDA- 23 TIONS.—The Secretary shall make any recommendations 24 received under subsection (c)(2) publicly available. 25 VerDate Sep 11 2014 23:38 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H850.IH H850 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 850 IH (e) AUTHORIZATION OF APPROPRIATIONS.—There 1 are authorized to be appropriated to the Secretary such 2 sums as may be necessary to carry out this section. 3 SEC. 5. ENFORCEMENT PROVISIONS. 4 (a) UNFAIR OR DECEPTIVE ACT OR PRACTICE.— 5 (1) IN GENERAL.—A violation of section 3 shall 6 be treated as a violation of a rule defining an unfair 7 or deceptive act or practice prescribed under section 8 18(a)(1)(B) of the Federal Trade Commission Act 9 (15 U.S.C. 57a(a)(1)(B)). 10 (2) ACTIONS BY THE COMMISSION.—The Com- 11 mission shall enforce section 3 in the same manner, 12 by the same means, and with the same jurisdiction, 13 powers, and duties as though all applicable terms 14 and provisions of the Federal Trade Commission Act 15 (15 U.S.C. 41 et seq.) were incorporated into and 16 made a part of this Act. 17 (3) ENFORCEMENT RELATED TO NONPROFIT 18 ORGANIZATIONS.—Notwithstanding section 4, 19 5(a)(2), or 6 of the Federal Trade Commission Act 20 (15 U.S.C. 44, 45(a)(2), 46) or any jurisdictional 21 limitation of the Federal Trade Commission, the 22 Commission shall also enforce this Act and the regu- 23 lations promulgated under this Act, in the same 24 manner provided in paragraphs (1) and (2) of this 25 VerDate Sep 11 2014 23:38 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H850.IH H850 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 850 IH subsection, with respect to organizations not orga- 1 nized to carry on business for their own profit or 2 that of their members. 3 (b) PRIVATE RIGHT OF ACTION.— 4 (1) IN GENERAL.—An individual who is ag- 5 grieved by a violation of section 3 may bring a civil 6 action in an appropriate Federal district court of 7 competent jurisdiction. 8 (2) DAMAGES; COSTS AND ATTORNEY’S FEES.— 9 A court may award to a prevailing party in a civil 10 action brought under paragraph (1)— 11 (A) actual damages sustained by the party 12 as a result of the violation that is the subject 13 of the action; and 14 (B) the costs of the action and reasonable 15 attorney’s fees. 16 (c) SHERMAN ACT.—A violation of this Act shall be 17 deemed to be a per se violation of the Sherman Act (15 18 U.S.C. 1 et seq.) and subject to all remedies and rights 19 afforded under that Act. 20 SEC. 6. STATE PREEMPTION. 21 (a) IN GENERAL.—A State may not enforce a State 22 law relating to the ability of college athletes to enter into 23 contracts for the use of their names, images, likenesses, 24 or athletic reputations pursuant to this Act. 25 VerDate Sep 11 2014 23:38 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H850.IH H850 pamtmann on DSKBC07HB2PROD with BILLS 12 •HR 850 IH (b) EXCEPTION FOR THE CERTIFICATION OF ATH- 1 LETE AGENTS.—A State may enforce a State law or regu- 2 lation relating to the certification of athlete agents under 3 the Sports Agent Responsibility and Trust Act (15 U.S.C. 4 7801 et seq.). 5 SEC. 7. RULE OF CONSTRUCTION. 6 Nothing in this Act shall affect the treatment of 7 qualified scholarships under section 117 of the Internal 8 Revenue Code of 1986. 9 Æ VerDate Sep 11 2014 23:38 Feb 2 [Text truncated for display. Full text available on Congress.gov.]