MISSISSIPPI LEGISLATURE
2021 Regular Session
To: Universities and Colleges
By: Senator(s) Parks, Carter, Simmons (12th), Norwood
AN ACT TO BE KNOWN AS THE "MISSISSIPPI INTERCOLLEGIATE ATHLETICS COMPENSATION RIGHTS ACT"; TO AUTHORIZE STUDENT-ATHLETES TO EARN COMPENSATION FOR HIS NAME, IMAGE AND LIKENESS; TO DEFINE TERMS RELATING THERETO; TO PROVIDE THAT STUDENT-ATHLETES SHALL NOT EARN COMPENSATION IN EXCHANGE FOR HIS ATHLETIC ABILITY OR PARTICIPATION IN INTERCOLLEGIATE ATHLETICS; TO PROVIDE THAT STUDENT-ATHLETES SHALL NOT BE DEEMED TO BE EMPLOYEES OF THE EDUCATIONAL INSTITUTION; TO PROVIDE THAT A POSTSECONDARY EDUCATIONAL INSTITUTION SHALL NOT UPHOLD A CONTRACT THAT PREVENTS A STUDENT-ATHLETE FROM EARNING COMPENSATION FROM HIS NAME, IMAGE OR LIKENESS; TO PROVIDE THAT ATHLETIC ASSOCIATIONS WITH AUTHORITY OVER INTERCOLLEGIATE ATHLETIC PROGRAMS SHALL NOT PREVENT A STUDENT-ATHLETE FROM EARNING COMPENSATION FROM HIS NAME, IMAGE OR LIKENESS; TO PROVIDE THAT A STUDENT-ATHLETE SHALL NOT RECEIVE OR ENTER INTO A CONTRACT FOR COMPENSATION FOR THE USE OF HIS OR HER NAME, IMAGE OR LIKENESS IN A WAY THAT ALSO USES ANY REGISTERED OR LICENSED MARKS, LOGOS, VERBIAGE OR DESIGNS OF A POSTSECONDARY INSTITUTION, UNLESS THE INSTITUTION HAS PROVIDED THE STUDENT-ATHLETE WITH WRITTEN PERMISSION; TO PROVIDE THAT ATHLETIC ASSOCIATIONS WITH AUTHORITY OVER INTERCOLLEGIATE ATHLETIC PROGRAMS SHALL NOT PREVENT EDUCATIONAL INSTITUTIONS FROM PARTICIPATING IN ATHLETICS AS A RESULT OF THE COMPENSATION OF A STUDENT-ATHLETE FOR THE USE OF THE STUDENT-ATHLETE'S NAME, IMAGE OR LIKENESS; TO PROVIDE THAT ATHLETIC ASSOCIATIONS WITH AUTHORITY OVER INTERCOLLEGIATE ATHLETIC PROGRAMS SHALL NOT PREVENT STUDENT-ATHLETES FROM OBTAINING PROFESSIONAL REPRESENTATION IN RELATION TO NAME, IMAGE OR LIKENESS; TO PROVIDE THAT A STUDENT-ATHLETE'S FINANCIAL AID SHALL NOT BE REVOKED IF HE IS COMPENSATED PURSUANT TO THIS ACT; TO PROVIDE THAT A STUDENT-ATHLETE WHO ENTERS INTO AN AGREEMENT SHALL DISCLOSE THE CONTRACT TO THE EDUCATIONAL INSTITUTION; TO PROVIDE THAT AN EDUCATIONAL INSTITUTION, BOOSTER, THIRD-PARTY LICENSEE, OR INDIVIDUAL OR ENTITY SHALL NOT PROVIDE COMPENSATION TO A CURRENT OR PROSPECTIVE STUDENT-ATHLETE AS AN INDUCEMENT FOR HIM TO ENROLL IN A SPECIFIC INSTITUTION; TO PROVIDE THAT A STUDENT-ATHLETE SHALL NOT ENTER INTO A LIKENESS AGREEMENT THAT RELATES TO THE PROMOTION OF GAMBLING, MARIJUANA, SPORTS BETTING, TOBACCO, ALCOHOL OR OTHER PRODUCTS THAT MAY BE CONSIDERED INCONSISTENT WITH THE EDUCATIONAL INSTITUTION'S VALUES; TO CODIFY NEW SECTION 93-19-17, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT PERSONS 18 YEARS OF AGE SHALL HAVE THE CAPACITY TO ENTER INTO BINDING CONTRACTS AFFECTING THE USE OF THEIR NAME, IMAGE, OR LIKENESS WHILE PARTICIPATING IN INTERCOLLEGIATE SPORTS; TO AMEND SECTION 73-42-3, MISSISSIPPI CODE OF 1972, TO INCLUDE COMPENSATION FOR THE USE OF A STUDENT-ATHLETE'S NAME, IMAGE OR LIKENESS IN THE DEFINITION OF "ENDORSEMENT CONTRACT" AND "AGENCY CONTRACT"; TO PROVIDE THAT NO POSTSECONDARY EDUCATIONAL INSTITUTION SHALL BE SUBJECT TO A CLAIM FOR DAMAGES FOR UNFAIR TRADE OR COMPETITION OR TORTIOUS INTERFERENCE; 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. (1) As used in this act, the following terms shall have the following meanings unless the context clearly indicates otherwise:
(a) "Compensation" means anything of value, monetary or otherwise, 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 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) 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's 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.
(2) 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 (NJCAA), 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.
(3) 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 marks or logos or to determine a student-athlete's apparel, gear or other wearables during an intercollegiate athletics competition or institution-sponsored event. A student-athlete may not receive or enter into a contract for compensation for the use of his or her name, image or likeness in a way that also uses any registered or licensed marks, logos, verbiage or designs of a postsecondary institution, unless the institution has provided the student-athlete with written permission to do so prior to execution of the contract or receipt of compensation. If permission is granted, the postsecondary educational institution, by agreement of all parties, may be compensated for the use in a manner consistent with market rates. A postsecondary educational institution may also prohibit a student-athlete from wearing any item of clothing, shoes, or other gear or wearables with the name, logo or insignia of any entity during an intercollegiate athletics competition or institution-sponsored event.
(4) 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 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.
(5) 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.
(6) 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. A student-athlete shall provide the postsecondary educational institution with written notice at least seven (7) days prior to entering into a representation agreement with any individual for the purpose of exploring or securing compensation for use of the student-athlete's name, image or likeness.
(7) 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 Act. 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.
(8) Athlete agents representing student-athletes shall comply with the Uniform Athlete Agents Act, Section 73-42-1 et seq., Mississippi Code of 1972, and the federal Sports Agent Responsibility and Trust Act in 15 USC Sections 7801-7807 in their relationships with student-athletes.
(9) 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.
(10) Before any contract for compensation for the use of a student-athlete's name, image or likeness is executed, and before any compensation is provided to the student-athlete in advance of a contract, the student-athlete shall disclose the contract to a designated official of the postsecondary educational institution in which the student is enrolled in a manner prescribed by the institution.
(11) 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.
(12) 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. Compensation for a student-athlete's name, image, or likeness may not be conditioned on athletic performance or attendance at a particular postsecondary educational institution.
(13) 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 before the date on which the student-athlete enrolls at a postsecondary educational institution.
(14) No student-athlete shall enter into a name, image, and likeness agreement or receive compensation from a third-party licensee for the endorsement or promotion of gambling, sports betting, controlled substances, marijuana, tobacco or alcohol company, brand or products, alternative or electronic nicotine product or delivery system, 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 or that negatively impacts or reflects adversely on a postsecondary education institution or its athletic programs, including, without limitation, bringing about public disrepute, embarrassment, scandal, ridicule or otherwise negatively impacting the reputation or the moral or ethical standards of the postsecondary educational institution.
(15) A contract for the use of the a student-athlete's name, image, or likeness which is formed while the student-athlete is participating in an intercollegiate sport at a postsecondary educational institution may not extend beyond the student-athlete's participation in the sport at the institution.
(16) Nothing in this act shall be interpreted to modify any requirements or obligations imposed under Title IX of the Education Amendments of 1972 (20 USC 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. 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 7. No postsecondary educational institution shall be subject to a 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 shall be subject to a claim for damages related to its adoption, implementation or enforcement of any contract, rule, regulation, standard or other requirement in compliance with this act. The 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 8. This act shall take effect and be in force from and after July 1, 2021.