Student Athlete Level Playing Field Act

I 116TH CONGRESS 2D SESSION H. R. 8382 To prohibit a covered athletic association and institution of higher education from prohibiting a student athlete from participating in intercollegiate athletics because such student athlete enters into an endorsement con- tract, and for other purposes. IN THE HOUSE OF REPRESENTATIVES SEPTEMBER 24, 2020 Mr. GONZALEZ of Ohio (for himself, Mr. CLEAVER, Mr. STIVERS, Ms. FUDGE, Mr. RODNEY DAVIS of Illinois, Mr. ALLRED, Mr. DUNCAN, and Mr. GOTTHEIMER) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on Education and Labor, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall with- in the jurisdiction of the committee concerned A BILL To prohibit a covered athletic association and institution of higher education from prohibiting a student athlete from participating in intercollegiate athletics because such student athlete enters into an endorsement contract, 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 ‘‘Student Athlete Level 4 Playing Field Act’’. 5 VerDate Sep 11 2014 00:04 Oct 27, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H8382.IH H8382 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 8382 IH SEC. 2. STUDENT ATHLETES AND ENDORSEMENT CON- 1 TRACTS AND AGENCY CONTRACTS. 2 (a) ABILITY OF A STUDENT ATHLETE TO ENTER 3 INTO AN ENDORSEMENT CONTRACT OR AN AGENCY CON- 4 TRACT.— 5 (1) PROHIBITION.—Subject to the exceptions in 6 paragraph (2), a covered athletic organization or in- 7 stitution of higher education may not prohibit a stu- 8 dent athlete from participating in intercollegiate ath- 9 letics because such student athlete enters into an en- 10 dorsement contract or an agency contract. 11 (2) EXCEPTIONS FOR ENDORSEMENT CON- 12 TRACTS.—A covered athletic organization or institu- 13 tion of higher education may prohibit a student ath- 14 lete from entering into an endorsement contract with 15 the following categories of brands, companies, or 16 types of contracts: 17 (A) A tobacco company or brand, including 18 any vaping device or e-cigarette or related prod- 19 uct. 20 (B) Any alcohol company or brand. 21 (C) Any seller or dispensary of a controlled 22 substance, including marijuana. 23 (D) Any adult entertainment business. 24 (E) Any casino or entities that sponsor or 25 promote gambling activities. 26 VerDate Sep 11 2014 00:04 Oct 27, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8382.IH H8382 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 8382 IH (3) PERMISSIBLE PROHIBITIONS.—A student 1 athlete may be prohibited from wearing any item of 2 clothing or gear with the insignia of any entity dur- 3 ing any athletic competition or university-sponsored 4 event. 5 (b) ENFORCEMENT.— 6 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC- 7 TICES.—A violation of this section shall be treated 8 as an unfair and deceptive act or practice in viola- 9 tion of a regulation under section 18(a)(1)(B) of the 10 Federal Trade Commission Act (15 U.S.C. 11 57a(a)(1)(B)) regarding unfair or deceptive acts or 12 practices. 13 (2) POWERS OF THE FTC.—The Federal Trade 14 Commission shall enforce this section in the same 15 manner, by the same means, and with the same ju- 16 risdiction, powers, and duties as though all applica- 17 ble terms and provisions of the Federal Trade Com- 18 mission Act (15 U.S.C. 41 et seq.). Any person that 19 violates this section shall be subject to the penalties 20 and entitled to the privileges and immunities pro- 21 vided in the Federal Trade Commission Act (15 22 U.S.C. 41 et seq.). Nothing in this Act shall be con- 23 strued to limit the authority of the Federal Trade 24 Commission under any other provision of law. 25 VerDate Sep 11 2014 00:04 Oct 27, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8382.IH H8382 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 8382 IH SEC. 3. COVERED ATHLETIC ORGANIZATION COMMISSION. 1 (a) ESTABLISHMENT.—There is established the Cov- 2 ered Athletic Organization Commission (in this section re- 3 ferred to as the ‘‘Commission’’), whose purpose shall be 4 to— 5 (1) make recommendations to Congress and to 6 each covered athletic organization about the imple- 7 mentation of name, image, and likeness rules; 8 (2) recommend to each covered athletic organi- 9 zation such a process to certify or recognize 10 credentialed athlete agents; 11 (3) make recommendations for the establish- 12 ment of an independent dispute resolution process, 13 for any dispute arising between a student athlete 14 and a covered athletic organization or institution of 15 higher education; and 16 (4) make recommendations for additional cat- 17 egories of endorsement contracts that are excepted 18 under section 2(a)(2). 19 (b) MEMBERSHIP.—The Commission shall consist of 20 13 members appointed in accordance with subsection (c) 21 from among or in accordance with the following: 22 (1) Institutions of higher education, including 23 athletic directors and coaches. 24 VerDate Sep 11 2014 00:04 Oct 27, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8382.IH H8382 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 8382 IH (2) At least two individuals who are current or 1 former student athletes who advocate for the inter- 2 est of student athletes. 3 (3) The National Collegiate Athletic Associa- 4 tion, athletic conference administrators, and admin- 5 istrators of other covered athletic organizations. 6 (4) Professionals with expertise in sports mar- 7 keting, contracting, and public relations. 8 (5) Individuals— 9 (A) with expertise in corporate governance; 10 and 11 (B) who are not associated with any cov- 12 ered athletic association or institution of higher 13 education. 14 (c) APPOINTMENT.— 15 (1) IN GENERAL.—Not later than 60 days after 16 the date of enactment of this Act, members of the 17 Commission shall be appointed as follows: 18 (A) Three members appointed by the 19 Speaker of the House of Representatives. 20 (B) Three members appointed by the mi- 21 nority leader of the House of Representatives. 22 (C) Three members appointed by the ma- 23 jority leader of the Senate. 24 VerDate Sep 11 2014 00:04 Oct 27, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8382.IH H8382 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 8382 IH (D) Three members appointed by the mi- 1 nority leader of the Senate. 2 (E) One member, who shall be the chair of 3 the Commission, selected by the members ap- 4 pointed under subparagraphs (A) through (D) 5 not later than 60 days after the appointment of 6 such members, and agreed upon by no fewer 7 than eight of such members. If eight such mem- 8 bers are unable to agree on an appointment 9 under this subparagraph within such 60 day pe- 10 riod, the Speaker of the House of Representa- 11 tives shall make the appointment under this 12 subparagraph. 13 (2) DIVERSITY.—To the extent practicable, the 14 Speaker and leaders making appointments under 15 paragraph (1) shall coordinate their appointments to 16 ensure that the Commission reflect diversity in gen- 17 der, race, sport with which they are associated, as 18 applicable, and divisions or conferences of applicable 19 covered athletic organizations. 20 (d) MEETINGS AND QUORUM.—Meetings of the Com- 21 mission shall be held at the call of the chair appointed 22 under subsection (c)(1)(E). A meeting may only be held 23 where there is a quorum of at least 7 members, including 24 not fewer than two members who are current or former 25 VerDate Sep 11 2014 00:04 Oct 27, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H8382.IH H8382 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 8382 IH student athletes who advocate for the interest of student 1 athletes. 2 (e) REPORT.—Not later than one, two, and three 3 years, respectively, after the Commission shall be con- 4 stituted, it shall submit to the Committee on Energy and 5 Commerce of the House of Representatives and the Com- 6 mittee on Commerce, Science, and Transportation of the 7 Senate annual reports that include the recommendations 8 in paragraphs (1) through (4) of subsection (a). The Com- 9 mission shall also make such reports available to the pub- 10 lic. 11 (f) SUNSET.—The Commission shall terminate 60 12 days after submitting the final report required under sub- 13 section (e). 14 SEC. 4. INSTITUTIONS OF HIGHER EDUCATION AND STU- 15 DENT ATHLETES WHO ENTER INTO EN- 16 DORSEMENT CONTRACTS. 17 Section 487(a) of the Higher Education Act of 1965 18 (20 U.S.C. 1094(a)) is amended by adding at the end the 19 following: 20 ‘‘(30) In the case of an institution that has a 21 student attending the institution who is an athlete 22 and has entered into an endorsement contract (as 23 defined under section 2 of the Sports Agent Respon- 24 sibility and Trust Act (15 U.S.C. 7801)) or an agen- 25 VerDate Sep 11 2014 00:04 Oct 27, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H8382.IH H8382 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 8382 IH cy contract (as defined in section 9 of the Student 1 Athlete Level Playing Field Act), such institution 2 will not— 3 ‘‘(A) prohibit such student from entering 4 into such an endorsement contract or an agency 5 contract, including through a rule, standard, or 6 policy that affects the eligibility of such student 7 to receive athletically related student aid (as de- 8 fined in section 485(e) of the Higher Education 9 Act of 1965 (20 U.S.C. 1092(e))); or 10 ‘‘(B) compensate such student for the 11 name, image, or likeness of such student.’’. 12 SEC. 5. PROHIBITING UNFAIR AND DECEPTIVE PRACTICES 13 AGAINST STUDENT ATHLETES. 14 (a) PROHIBITING UNFAIR AND DECEPTIVE PRAC- 15 TICES BY BOOSTERS.—The Sports Agent Responsibility 16 and Trust Act (15 U.S.C. 7801 et seq.) is amended— 17 (1) in section 2— 18 (A) by redesignating paragraphs (4) 19 through (9) as paragraphs (5) through (10), re- 20 spectively; and 21 (B) by inserting after paragraph (3) the 22 following new paragraph: 23 ‘‘(4) BOOSTER.—The term ‘booster’ means an 24 individual (other than an individual who is related to 25 VerDate Sep 11 2014 00:04 Oct 27, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H8382.IH H8382 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 8382 IH a student athlete) or an organization, including a 1 sponsor of an institution’s athletic program, that 2 provides substantial financial assistance or services 3 to the athletic program of an institution of higher 4 education or that promotes a team or athletic pro- 5 gram of an institution of higher education for such 6 individual’s or organization’s own substantial finan- 7 cial interest.’’; 8 (2) by inserting after section 3 the following 9 new section: 10 ‘‘SEC. 3A. REGULATION OF UNFAIR AND DECEPTIVE ACTS 11 AND PRACTICES IN CONNECTION WITH CON- 12 TACT BETWEEN A BOOSTER AND A STUDENT 13 ATHLETE. 14 ‘‘It is unlawful for a booster to directly or indirectly 15 provide or offer to provide any funds or thing of value 16 as an inducement for a student athlete to enroll or remain 17 at a specific institution or group of institutions.’’; and 18 (3) in section 5(a)(1), by inserting ‘‘or by the 19 engagement of any booster in a practice that violates 20 section 3A’’ after ‘‘section 3’’. 21 (b) ELIGIBILITY TO COMPETE AS A STUDENT ATH- 22 LETE AFTER ENTERING INTO AN AGENCY CONTRACT.— 23 Section 3(b)(3) of the Sports Agent Responsibility and 24 Trust Act (15 U.S.C. 7802(b)(3)) is amended in the 25 VerDate Sep 11 2014 00:04 Oct 27, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H8382.IH H8382 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 8382 IH quoted part by inserting after ‘‘boldface type stating:’’ the 1 following: ‘‘ ‘Notice to Student Athlete: If you agree orally 2 or in writing to be represented by an agent now or in the 3 future, both you and the agent by whom you are agreeing 4 to be represented must notify the athletic director of the 5 educational institution at which you are enrolled, or other 6 individual responsible for athletic programs at such edu- 7 cational institution, that you have entered into an agency 8 contract. Such notification must be within 72 hours after 9 entering into this contract or before the next athletic event 10 in which you are eligible to participate, whichever occurs 11 first.’ ’’. 12 (c) REPORT ON CLAIMS FILED PURSUANT TO THE 13 SPORTS AGENT RESPONSIBILITY AND TRUST ACT.—The 14 Sports Agent Responsibility and Trust Act (15 U.S.C. 15 7801 et seq.) is further amended by inserting after section 16 6 the following new section: 17 ‘‘SEC. 6A. REPORT TO CONGRESS. 18 ‘‘Not later than 6 months after the date of enactment 19 of this section, and annually thereafter, the Commission 20 shall submit to the Committee on Energy and Commerce 21 of the House of Representatives and the Committee on 22 Commerce, Science, and Transportation of the Senate a 23 report summarizing any investigation or enforcement ac- 24 tion brought by the Commission pursuant to this Act, in- 25 VerDate Sep 11 2014 00:04 Oct 27, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H8382.IH H8382 pbinns on DSKJLVW7X2PROD with BILLS 11 •HR 8382 IH cluding the number of complaints filed with the Commis- 1 sion pursuant to this Act.’’. 2 SEC. 6. STATE PREEMPTION. 3 No State may enforce a State law or regulation with 4 respect to permitting or abridging the ability of a student 5 athlete attending an institution of higher education to 6 enter into an endorsement contract or agency contract 7 pursuant to this Act or by an amendment made by this 8 Act. 9 SEC. 7. RULES OF CONSTRUCTION. 10 (a) TAX PROVISIONS.—Nothing in this Act or the 11 amendments made by this Act shall affect the treatment 12 of qualified scholarships under section 117 of the Internal 13 Revenue Code of 1986. 14 (b) NONDISCRIMINATION OF STUDENT ATHLETES.— 15 Nothing in this Act or the amendments made by this Act 16 may be construed to affect the rights of student athletes 17 or affect any program funded under title IX of the Edu- 18 cation Amendments of 1972 (20 U.S.C. 1681 et seq.). 19 (c) ANTITRUST LAWS.—Nothing in this Act or the 20 amendments made by this Act shall provide a cause of 21 action pursuant to the Sherman Act (15 U.S.C. 1 et seq.). 22 (d) STUDENT ATHLETE NOT CONSIDERED AN EM- 23 PLOYEE.—Nothing in this Act or the amendments made 24 by this Act shall affect the employment status of a student 25 VerDate Sep 11 2014 00:04 Oct 27, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H8382.IH H8382 pbinns [Text truncated for display. 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