MISSISSIPPI LEGISLATURE

2022 Regular Session

To: Universities and Colleges

By: Senator(s) Parks

Senate Bill 2690

(As Sent to Governor)

AN ACT TO AMEND SECTION 37-97-103, MISSISSIPPI CODE OF 1972, TO CLARIFY THE DEFINITIONS OF CERTAIN TERMINOLOGY RELATED TO NAME, IMAGE AND LIKENESS AGREEMENTS FOR STUDENT-ATHLETES; TO AMEND SECTION 37-97-105, MISSISSIPPI CODE OF 1972, TO CLARIFY THE ABILITY OF A STUDENT-ATHLETE TO EARN COMPENSATION FOR THE USE OF HIS OR HER PUBLICITY RIGHTS; TO AMEND SECTION 37-97-107, MISSISSIPPI CODE OF 1972, TO CLARIFY THE AUTHORITY OF POSTSECONDARY EDUCATIONAL INSTITUTIONS REGARDING RESTRICTIONS ON COMPENSATION FOR THE USE OF A STUDENT-ATHLETE'S PUBLICITY RIGHTS; TO FURTHER RESTRICT ASSOCIATIONS OR ORGANIZATIONS WITH AUTHORITY OVER INTERCOLLEGIATE ATHLETIC PROGRAMS FROM PENALIZING A POSTSECONDARY EDUCATIONAL INSTITUTION OR ITS INTERCOLLEGIATE ATHLETIC PROGRAM FOR COMPLIANCE WITH PROVISIONS OF THE MISSISSIPPI INTERCOLLEGIATE ATHLETICS COMPENSATION RIGHTS ACT; TO PERMIT POSTSECONDARY EDUCATIONAL INSTITUTIONS TO FACILITATE OPPORTUNITIES FOR STUDENT-ATHLETES TO ENGAGE THIRD PARTIES INTERESTED IN ENTERING INTO NAME, IMAGE AND LIKENESS AGREEMENTS; TO REMOVE THE PROHIBITION ON A STUDENT-ATHLETE ENTERING INTO A NAME, IMAGE AND LIKENESS AGREEMENT BEFORE ENROLLING AT A POSTSECONDARY EDUCATIONAL INSTITUTION; TO AMEND SECTION 73-42-19, MISSISSIPPI CODE OF 1972, TO REVISE THE REQUIRED WARNING TO STUDENT-ATHLETES IN AN AGENCY CONTRACT TO CONFORM TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.

     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  Section 37-97-103, Mississippi Code of 1972, is amended as follows:

     37-97-103.  (1)  As used in this article, 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 article.

     For the purposes of this article, "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 for services unrelated to a student-athlete's publicity rights or other intellectual or intangible property rights of a student-athlete under federal or state law.

          (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 other arrangement between a student-athlete and a third-party * * * licensee regarding the * * * commercial use of the * * * name, image or likeness publicity of the student-athlete.

          (g)  "Publicity right" means any right * * * that is:

              (i) * * *  Licensed under a  Associated with the name, image, * * * and likeness * * * agreement, publicity, reputation, fame or personal following of a student-athlete; or

              (ii)  Recognized under a federal or state law * * * that permits as permitting an individual to control and profit from the * * * commercial use of the name, image * * * or, likeness, publicity, reputation, fame or personal following 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 publicity rights.

          (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, including, without limitation, prospective student-athletes of an intercollegiate athletics program.  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 or group of the same, acting independently or collectively, that * * * licenses enters into an agreement for the publicity rights * * * or the use of name, image or likeness from any prospective or current of a 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 2.  Section 37-97-105, Mississippi Code of 1972, is amended as follows:

     37-97-105.  (1)  Except as provided in Section 37-97-107, a student-athlete may:

          (a)  Earn compensation, * * * commensurate with market value, for the use of * * * the name, image, or likeness publicity rights 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 3.  Section 37-97-107, Mississippi Code of 1972, is amended as follows:

     37-97-107.  (1)  Except as provided for under this article, 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 for the use of the student's * * * name, image, or likeness publicity rights.  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 publicity rights 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 article 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 article, 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 publicity rights.

     (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 publicity rights.  Nothing in this article 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 publicity rights 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 entering into the agreement 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, or otherwise penalize the postsecondary educational institution or its intercollegiate athletic program, as a result of activities permitted by this article, including, without limitation, the compensation of a student-athlete for the use of the student-athlete's * * * name, image or likeness publicity rights.

     (5)  (a)  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:

              ( * * *ai)  Enter into, or offer to enter into, a name, image and likeness agreement with a * * * prospective or current student-athlete; or

              ( * * *bii)  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 publicity rights.

          (b)  A postsecondary educational institution may facilitate opportunities for student-athletes to engage with third parties interested in entering into name, image, and likeness agreements, and may communicate with third parties interested in providing name, image, and likeness agreements to student-athletes.

     (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 publicity rights, 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 publicity rights.

     (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 article.

     (10)  Before any * * * contract agreement for compensation for the use of a student-athlete's * * * name, image or likeness publicity rights is * * * executed entered into, and before any compensation is provided to the student-athlete in advance of * * * a contract an agreement, the student-athlete shall disclose the * * * contract agreement to a designated official of the postsecondary educational institution in which the student-athlete 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 publicity rights if a provision of the name, image and likeness agreement or the use of the student-athlete's * * * name, image and likeness publicity 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 * * *,  or 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 publicity rights 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.

     ( * * *1413)  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 product, alternative or electronic nicotine product or delivery system, performance-enhancing * * * supplements supplement, 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.

     ( * * *1514) * * *  A contract  An agreement for the use of * * * the a student-athlete's * * * name, image, or likeness publicity rights 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.

     ( * * *1615)  Nothing in this article 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 4.  Section 73-42-19, Mississippi Code of 1972, is amended as follows:

     73-42-19.  (1)  An agency contract must be in a record, signed by the parties.

     (2)  An agency contract must state or contain:

          (a)  The amount and method of calculating the consideration to be paid by the student-athlete for services to be provided by the athlete agent under the contract and any other consideration or anything of value that the athlete agent has received or will receive from any other source for entering into the contract or for providing the services;

          (b)  The name of any person not listed in the application for registration or renewal who will be compensated because the student-athlete signed the agency contract;

          (c)  A description of any expenses that the student-athlete agrees to reimburse;

          (d)  A description of the services to be provided to the student-athlete;

          (e)  The duration of the contract; and

          (f)  The date of execution.

     (3)  An agency contract must contain, in close proximity to the signature of the student-athlete, a conspicuous notice in boldface type in capital letters stating:

WARNING TO STUDENT-ATHLETE

IF YOU SIGN THIS CONTRACT:

     (1)  YOU MAY LOSE YOUR ELIGIBILITY TO COMPETE AS A STUDENT-ATHLETE IN YOUR SPORT UNLESS THIS CONTRACT IS SERVING AS A NAME, IMAGE AND LIKENESS AGREEMENT PURSUANT TO SECTION 37-97-103;

     (2)  BOTH YOU AND YOUR ATHLETE AGENT ARE REQUIRED TO TELL YOUR ATHLETIC DIRECTOR, IF YOU HAVE AN ATHLETIC DIRECTOR, WITHIN 72 HOURS AFTER ENTERING INTO AN AGENCY CONTRACT; AND

     (3)  YOU MAY CANCEL THIS CONTRACT WITHIN 14 DAYS AFTER SIGNING IT.  CANCELLATION OF THE CONTRACT MAY NOT REINSTATE YOUR ELIGIBILITY.

     (4)  An agency contract that does not conform to this section is voidable by the student-athlete.

     (5)  The athlete agent shall give a copy of the signed agency contract to the student-athlete at the time of signing.

     SECTION 5.  This act shall take effect and be in force from and after its passage.