Collegiate Athlete Compensation Rights Act

II 116TH CONGRESS 2D SESSION S. 5003 To protect the rights of student athletes, to provide for transparency and accountability with respect to student athlete name, image, and likeness agreements, and to establish an independent entity for intercollegiate athletics, and for other purposes. IN THE SENATE OF THE UNITED STATES DECEMBER 10, 2020 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, to provide for transparency and accountability with respect to student athlete name, image, and likeness agreements, and to establish an independent entity for intercollegiate ath- letics, 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 ‘‘Collegiate Athlete 4 Compensation Rights Act’’. 5 SEC. 2. DEFINITIONS. 6 In this Act: 7 VerDate Sep 11 2014 22:57 Dec 22, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S5003.IS S5003 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 5003 IS (1) ASSOCIATION.—The term ‘‘association’’ 1 means any organization that— 2 (A) has as members 2 or more conferences 3 or institutions; and 4 (B) arranges championships and sets rules 5 for varsity intercollegiate sports competition. 6 (2) BOOSTER.—The term ‘‘booster’’ means an 7 individual or entity that, in a calendar year, directly 8 or indirectly, through an institution or any other in- 9 dividual or entity or in any other manner— 10 (A) has provided a donation to obtain sea- 11 son tickets for any sport at an institution that 12 exceeds the annual amount determined by the 13 Entity; 14 (B) has made a financial contribution di- 15 rectly to the athletics department or other ath- 16 letics management organization of an institu- 17 tion in an amount that exceeds the annual 18 amount determined by the Entity; 19 (C) is party to any license agreement for 20 use of the trademarks of an institution in con- 21 nection with athletics under which the total 22 payments exceed such amount; 23 (D) has made any combination of such do- 24 nations, contributions, or license payments, or 25 VerDate Sep 11 2014 22:57 Dec 22, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S5003.IS S5003 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 5003 IS has provided any other form of consideration in 1 connection with an activity described in any of 2 subparagraphs (A) through (C), that, in the ag- 3 gregate, exceed such amount; 4 (E) has arranged or provided employment 5 for 1 or more student athletes; or 6 (F) has assisted, or been requested by an 7 employee of an institution to assist, in the re- 8 cruitment of a prospective student athlete. 9 (3) CERTIFICATION OFFICE.—The term ‘‘cer- 10 tification office’’ means the office established by the 11 Entity under section 6(e)(2). 12 (4) CERTIFIED AGENT.—The term ‘‘certified 13 agent’’ means an athlete agent (as defined in section 14 2 of the Sports Agent Responsibility and Trust Act 15 (15 U.S.C. 7801))— 16 (A) who is certified by the certification of- 17 fice as being in full compliance with all require- 18 ments established by the certification office; 19 and 20 (B) whose certification has not lapsed, ex- 21 pired, or been revoked. 22 (5) COMMISSION.—The term ‘‘Commission’’ 23 means the Federal Trade Commission. 24 VerDate Sep 11 2014 22:57 Dec 22, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S5003.IS S5003 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 5003 IS (6) CONFERENCE.—The term ‘‘conference’’ 1 means any organization or association that— 2 (A) has as members 2 or more institutions; 3 and 4 (B) arranges championships and sets rules 5 for varsity intercollegiate sports competition. 6 (7) COST OF ATTENDANCE.—The term ‘‘cost of 7 attendance’’— 8 (A) has the meaning given the term in sec- 9 tion 472 of the Higher Education Act of 1965 10 (20 U.S.C. 1087ll); and 11 (B) shall be calculated by the financial aid 12 office of each institution applying the same 13 standards, policies, and procedures for all stu- 14 dents, including such amounts paid or provided 15 by the institution for undergraduate and grad- 16 uate studies at the institution. 17 (8) COVERED COMPENSATION.— 18 (A) IN GENERAL.—The term ‘‘covered 19 compensation’’ includes any form of payment or 20 remuneration, including cash, benefits, awards, 21 gifts, in-kind contributions, and any other form 22 of payment or remuneration. 23 (B) INCLUSIONS.—The term ‘‘covered 24 compensation’’ includes social media compensa- 25 VerDate Sep 11 2014 22:57 Dec 22, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S5003.IS S5003 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 5003 IS tion and payments for licensing or use of pub- 1 licity rights or for other intellectual or intan- 2 gible property rights under Federal or State 3 law. 4 (C) EXCLUSIONS.—The term ‘‘covered 5 compensation’’ does not include the payment or 6 provision of the following: 7 (i) Tuition, room, board, books, fees, 8 and personal expenses paid or provided by 9 an institution up to the full cost of attend- 10 ance. 11 (ii) Federal Pell Grants and other 12 State and Federal grants unrelated to, and 13 not awarded with respect to, participation 14 in varsity intercollegiate sports competi- 15 tion. 16 (iii) Health insurance and the costs of 17 health care wholly or partly self-funded by 18 an association, a conference, or an institu- 19 tion. 20 (iv) Disability and loss of value insur- 21 ance that is wholly or partly self-funded by 22 an association, a conference, or an institu- 23 tion. 24 VerDate Sep 11 2014 22:57 Dec 22, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S5003.IS S5003 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 5003 IS (v) Career counseling or job place- 1 ment services available to all students at 2 an institution. 3 (vi) Payment of hourly wages and 4 benefits for work actually performed (and 5 not for participation in intercollegiate ath- 6 letics) at a rate commensurate with the 7 prevailing rate in the locality of an institu- 8 tion for similar work. 9 (9) DIVISION.—The term ‘‘division’’ means an 10 organization of institutions— 11 (A) the athletics programs of which com- 12 pete against each other at a similar level of 13 competition; and 14 (B) that is recognized by an association. 15 (10) ENROLL.—With respect to a student ath- 16 lete, the term ‘‘enroll’’ means to receive passing 17 grades, as determined by the applicable institution, 18 for completing courses of instruction at such institu- 19 tion comprising not less than 12 percent of the cred- 20 its required for graduation from the institution. 21 (11) ENTITY.—The term ‘‘Entity’’ means the 22 independent entity for intercollegiate athletics se- 23 lected by the Commission under section 6(b). 24 VerDate Sep 11 2014 22:57 Dec 22, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S5003.IS S5003 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 5003 IS (12) IMAGE.—The term ‘‘image’’, with respect 1 to a student athlete, means a picture of the student 2 athlete. 3 (13) INSTITUTION.—The term ‘‘institution’’ 4 means an institution of higher education (as defined 5 in section 101 of the Higher Education Act of 1965 6 (20 U.S.C. 1001)) that sponsors varsity intercolle- 7 giate sports competition in the United States. 8 (14) INTERCOLLEGIATE ATHLETICS.—The term 9 ‘‘intercollegiate athletics’’ means sports played at the 10 collegiate level for which eligibility requirements for 11 participation by student athletes are established by 12 an association for the promotion or regulation of col- 13 legiate athletics. 14 (15) LIKENESS.—The term ‘‘likeness’’, with re- 15 spect to a student athlete, means a physical or dig- 16 ital depiction or representation of the student ath- 17 lete. 18 (16) LOSS OF VALUE INSURANCE.—The term 19 ‘‘loss of value insurance’’ means insurance that pro- 20 tects the future contract value of a student athlete 21 from decreasing below a predetermined amount due 22 to significant injury or illness suffered by the stu- 23 dent athlete during the designated coverage period 24 of the insurance policy. 25 VerDate Sep 11 2014 22:57 Dec 22, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S5003.IS S5003 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 5003 IS (17) NAME.—The term ‘‘name’’, with respect to 1 a student athlete, means the first or last name, or 2 the nickname, of the student athlete when used in 3 a context that reasonably identifies the student ath- 4 lete with particularity. 5 (18) NAME, IMAGE, AND LIKENESS AGREE- 6 MENT.—The term ‘‘name, image, and likeness agree- 7 ment’’ means a contract or similar arrangement be- 8 tween a student athlete and a third-party licensee 9 regarding the commercial use of the name, image, or 10 likeness of the student athlete. 11 (19) PUBLICITY RIGHT.—The term ‘‘publicity 12 right’’— 13 (A) means a right that is recognized under 14 a Federal or State law that permits an indi- 15 vidual to control and profit from the commer- 16 cial use of the name, image, or likeness of the 17 individual; and 18 (B) includes any right that is licensed 19 under a name, image, and likeness agreement. 20 (20) SOCIAL MEDIA COMPENSATION.—The term 21 ‘‘social media compensation’’ includes all forms of 22 payment for engagement on social media received by 23 a student athlete as a result of the use of the name, 24 image, or likeness of the student athlete. 25 VerDate Sep 11 2014 22:57 Dec 22, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S5003.IS S5003 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 5003 IS (21) STUDENT ATHLETE.—The term ‘‘student 1 athlete’’ means any individual attending an institu- 2 tion who participates as a team member or compet- 3 itor in varsity intercollegiate sports competition 4 sponsored by the institution. 5 (22) THIRD-PARTY LICENSEE.— 6 (A) IN GENERAL.—The term ‘‘third-party 7 licensee’’ means any individual or entity that li- 8 censes publicity rights from any current or pro- 9 spective student athlete or groups of student 10 athletes. 11 (B) EXCLUSION.—The term ‘‘third-party 12 licensee’’ does not include any association, con- 13 ference, or institution. 14 (23) VARSITY INTERCOLLEGIATE SPORTS COM- 15 PETITION.—The term ‘‘varsity intercollegiate sports 16 competition’’ means competition between and among 17 collegiate sports teams that principally represent an 18 institution at the highest level of competition. 19 SEC. 3. PROTECTION OF STUDENT ATHLETE RIGHTS. 20 (a) IN GENERAL.—Except as provided in section 4, 21 an association, a conference, or an institution shall permit 22 a student athlete— 23 (1) to earn covered compensation, commensu- 24 rate with market value, for the use of the name, 25 VerDate Sep 11 2014 22:57 Dec 22, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S5003.IS S5003 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 5003 IS image, or likeness of the student athlete while en- 1 rolled at an institution; and 2 (2) to obtain and retain a certified agent for 3 any matter or activity relating to such covered com- 4 pensation. 5 (b) RESCISSION OF AGREEMENTS.—In the case of a 6 student athlete who no longer participates in varsity inter- 7 collegiate sports competition, the student athlete may re- 8 scind a name, image, and likeness agreement with a re- 9 maining term of more than 1 year— 10 (1) without being held liable for breach; and 11 (2) with no obligation to return payments re- 12 ceived before giving notice of the rescission. 13 (c) EDUCATIONAL RESOURCES.—The Entity shall 14 provide educational resources to student athletes with re- 15 spect to earning covered compensation for the use of the 16 name, image, or likeness of the student athlete. 17 SEC. 4. PROHIBITIONS ON CERTAIN ACTIVITIES OF INSTI- 18 TUTIONS, BOOSTERS, AND THIRD-PARTY LI- 19 CENSEES. 20 (a) RESTRICTIONS ON EARNING COVERED COM- 21 PENSATION.— 22 (1) IN GENERAL.—An association, a conference, 23 or an institution may not adopt or maintain a con- 24 tract, rule, regulation, standard, or other require- 25 VerDate Sep 11 2014 22:57 Dec 22, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S5003.IS S5003 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 5003 IS ment that prevents or unduly restricts a student 1 athlete from earning covered compensation for the 2 use of the name, image, or likeness of the student 3 athlete. 4 (b) CLASSIFICATION OF STUDENT ATHLETES.—Not- 5 withstanding any other provision of Federal or State law, 6 a student athlete shall not be considered an employee of 7 an association, a conference, or an institution based on 8 participation in varsity intercollegiate sports competition. 9 (c) PAYMENT TO STUDENT ATHLETES OR FAMI- 10 LIES.—An institution may not, directly or indirectly, pro- 11 vide covered compensation to a student athlete or a pro- 12 spective student athlete, or to the family of a student ath- 13 lete or a prospective student athlete. 14 (d) SCHOLARSHIPS.—An institution or an association 15 may not revoke or impose a condition on an athletic schol- 16 arship of a student athlete based on the student athlete 17 having earned covered compensation or having obtained 18 a certified agent in accordance with this Act. 19 (e) CONFLICTS WITH CONTRACTS OR RULES OF IN- 20 STITUTION.— 21 (1) IN GENERAL.—Except as provided in para- 22 graph (2), a third-party licensee may not enter into, 23 or offer to enter into, a name, image, and likeness 24 agreement with a student athlete that provides cov- 25 VerDate Sep 11 2014 22:57 Dec 22, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S5003.IS S5003 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 5003 IS ered compensation if a provision of the name, image, 1 and likeness agreement conflicts with a provision of 2 a contract, rule, regulation, standard, or other re- 3 quirement of the applicable institution. 4 (2) EXCEPTION.—A third-party licensee may 5 enter into, or offer to enter into, a name, image, and 6 likeness agreement with a student athlete that con- 7 flicts with a provision of a contract, rule, regulation, 8 standard, or other requirement of the applicable in- 9 stitution if— 10 (A) the institution consents, in writing, to 11 the name, image, and likeness agreement; or 12 (B) the contract, rule, regulation, stand- 13 ard, or other requirement unduly restricts stu- 14 dent athletes from earning covered compensa- 15 tion for the use of the name, image, or likeness 16 of the student athlete. 17 (3) DISCLOSURES.— 18 (A) CONFLICTS.—An institution asserting 19 a conflict described in paragraph (1) shall dis- 20 close to the cert [Text truncated for display. Full text available on Congress.gov.]