MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Judiciary A
By: Representative Lamar
AN ACT TO AMEND SECTION 72-42-3, MISSISSIPPI CODE OF 1972, TO UPDATE DEFINITIONS; TO AMEND SECTION 73-42-13, Mississippi Code of 1972, TO SPECIFY VENUE FOR CAUSES OF ACTION RELATED TO ATHLETE AGENT CONTRACTS; TO AMEND SECTION 73-42-19, Mississippi Code of 1972, TO CLARIFY CONTRACTUAL REQUIREMENTS FOR AGENCY CONTRACTS; TO AMEND SECTION 73-42-23, MISSISSIPPI CODE OF 1972, TO RECOGNIZE RIGHTS OF PARENTS OR GUARDIANS OF MINOR; TO AMEND SECTION 73-42-34, MISSISSIPPI CODE OF 1972, TO CONFORM WITH VENUE REQUIREMENTS; TO ENACT SECTION 73-42-41, MISSISSIPPI CODE OF 1972, TO RECOGNIZE THE AUTHORITY AND AUTONOMY OF EDUCATIONAL INSTITUTIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. 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, or enrollment at any educational institution that offers an athletic scholarship to the student-athlete.
(b) (i) "Athlete agent" means an individual, whether or not registered under this chapter, who:
1.
* * * Directly or
indirectly, recruits * * * or solicits a student-athlete to enter into an agency
contract * * *, or, for compensation,
procures employment or offers, promises, attempts, or negotiates to
obtain employment for a student-athlete as a professional athlete or member of
a professional sports team or organization.
2. For compensation or in anticipation of compensation related to a student-athlete's participation in athletics:
a. Serves the athlete in an advisory capacity on a matter related to finances, business pursuits, or career management decisions, unless the individual is an employee of an educational institution acting exclusively as an employee of the institution for the benefit of the institution; or
b. Manages the business affairs of the athlete by providing assistance with bills, payments, contracts, or taxes.
3. In anticipation of representing a student-athlete for a purpose related to the athlete's participation in athletics:
a. Gives consideration to the student-athlete or another person;
b. Serves the athlete in an advisory capacity on a matter related to finances, business pursuits, or career management decisions; or
c. Manages the business affairs of the athlete by providing assistance with bills, payments, contracts, or taxes; but
(ii) "Athlete agent" does not mean an individual who:
1. Acts solely on behalf of a professional sports team or organization; or
2. Is a spouse, parent, sibling, grandparent or guardian of the student-athlete; or
3. Is a licensed, registered, or certified professional and offers or provides services to a student–athlete customarily provided by members of that profession, unless the individual also recruits or solicits the athlete to enter into an agency contract.
(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) "Educational institution" includes a public or private secondary school, technical or vocational school, community college, college, or university.
( * * *f) "Endorsement contract"
means 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.
( * * *g) "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.
(h) "Interscholastic sport" means a sport played between educational institutions that are not community colleges, colleges, or universities.
(i) "Licensed, registered, or certified professional" means an individual licensed registered or certified as an attorney, dealer in securities, financial planner, insurance agent, real estate broker or sales agent, tax consultant, accountant, or member of a profession, other than that of athlete agent, who is licensed, registered, or certified by the state or a nationally recognized organization that licenses, registers, or certifies members of that profession on the basis of experience, education, or testing.
( * * *j) "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.
( * * *k) "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.
( * * *l) "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.
(m) "Recruit or solicit" means an attempt to influence a student-athlete's selection of an athlete agent, or, if the athlete is a minor, a parent or guardian of the athlete. The term does not include giving advice on the selection of a particular agent in a family, coaching, or social situation unless the individual giving the advice does so because of the receipt or anticipated receipt of an economic benefit, directly or indirectly, from the agent.
( * * *n) "Registration" means
registration as an athlete agent pursuant to this chapter.
( * * *o) "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.
( * * *p) "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 2. Section 73-42-13, Mississippi Code of 1972, is amended as follows:
73-42-13. (1) After proper notice and an opportunity for a hearing, the Secretary of State may deny, suspend, revoke or refuse to renew a registration for conduct that would have justified denial of registration under Section 73-42-11(3) or for a violation of any provision of this chapter.
(2) (a) The Secretary of State shall appoint at least one (1) hearing officer for the purpose of holding hearings, compiling evidence and rendering decisions under this section and Section 73-42-11. The hearing officer shall fix the date for an adjudicatory hearing and notify the athlete agent involved. The hearing shall be held at a location to be designated by the hearing officer. Unless the time period is extended by the hearing officer, the hearing shall be held not less than fifteen (15) nor more than thirty (30) days after the mailing of notice to the athlete agent involved. At the conclusion of the hearing, the hearing officer shall make a recommendation regarding the registration of the athlete agent involved. The Secretary of State shall then take appropriate action by final order.
(b) Any athlete agent
whose application for registration has been denied or not renewed, or whose
registration has been revoked or suspended by the Secretary of State, within
thirty (30) days after the date of such final order, shall have the right of a
trial de novo on appeal to the circuit court of the county of residence
of the athlete agent, * * * if the agent is a
Mississippi resident, or the circuit court of the county in which the
educational institution that the student-athlete attended is located. If
the secretary's final order is supported by substantial evidence and does not
violate a state or federal law, then it shall be affirmed by the circuit
court. Either party shall have the right of appeal to the Supreme Court as
provided by law from any decision of the circuit court. No athlete agent shall
be allowed to deliver services to a student-athlete domiciled or residing in
Mississippi while any such appeal is pending.
(3) In addition to the reasons specified in subsection (1) of this section, the secretary shall be authorized to suspend the registration of any person for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a registration for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a registration suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a registration suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. Actions taken by the secretary in suspending the registration of a person when required by Section 93-11-157 are not actions from which an appeal may be taken under this section. Any appeal of a registration suspension that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.
SECTION 3. 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) A statement that the athlete agent is registered as an athlete agent in this state;
( * * *b) 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;
( * * *c) The name of any person not listed
in the agent's application for registration or renewal who will be
compensated because the student-athlete signed the agency contract;
( * * *d) A description of any expenses that
the student-athlete agrees to reimburse;
( * * *e) A description of the services to be
provided to the student-athlete;
( * * *f) The duration of the contract; and
( * * *g) 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;
(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 OR BEFORE THE NEXT SCHEDULED ATHLETIC EVENT IN WHICH YOU PARTICIPATE, WHICHEVER OCCURS FIRST; AND
(3) YOU MAY CANCEL THIS CONTRACT WITHIN 14 DAYS AFTER SIGNING IT. CANCELLATION OF THE CONTRACT MAY NOT REINSTATE YOUR ELIGIBILITY AS A STUDENT-ATHLETE IN YOUR SPORT.
(4) * * * An agency contract must
be accompanied by a separate record signed by the student-athlete, or, if the
athlete is a minor, the parent or guardian of the athlete acknowledging that
signing the contract may result in the loss of the athlete's eligibility to
participate in the athlete's sport.
(5) * * * A
student-athlete, or, if the athlete is a minor, the parent or guardian of the
athlete may void an agency contract that does not conform to this section. If
the contract is voided, any consideration received from the athlete agent under
the contract to induce the student-athlete entering into the contract is not
required to be returned.
At the time an agency contract is executed, the athlete agent shall give the student-athlete or, if the athlete is a minor, the parent or guardian of the athlete, a copy of the representation contract and the separate acknowledgement required by subsection (4).
(6) If the student-athlete is a minor, an agency contract must be signed by the parent or guardian of the minor and the notice required by subsection (3) must be revised accordingly.
SECTION 4. Section 73-42-23, Mississippi Code of 1972, is amended as follows:
73-42-23. (1) A student-athlete, or, if the athlete is a minor, the parent or guardian of the athlete, may cancel an agency contract by giving notice to the athlete agent of the cancellation within fourteen (14) days after the date the contract is signed.
(2) A student-athlete, or, if the athlete is a minor, the parent or guardian of the athlete, may not waive the right to cancel any agency contract.
(3) If a student-athlete,
parent or guardian cancels an agency contract, the * * * athlete, parent nor guardian
is * * *
required to pay any consideration under the contract or to return any
consideration received from the athlete agent to induce the * * * athlete to enter into the
contract.
SECTION 5. Section 73-42-34, Mississippi Code of 1972, is amended as follows:
73-42-34. (1) If the Secretary of State determines that a person has engaged in or is engaging in an act, practice, or course of business constituting a violation of this chapter or a rule adopted or order issued under this chapter, or that a person has materially aided or is materially aiding in an act, practice, or course of business constituting a violation of this chapter or a rule adopted or order issued under this chapter, then the secretary may:
(a) Issue an order directing the person to cease and desist from engaging in the act, practice, or course of business, or to take other action necessary or appropriate to comply with this chapter or any rule adopted or order issued under this chapter;
(b) Issue an order imposing an administrative penalty against an athlete agent who violated any provision of this chapter or any rule adopted or order issued under this chapter; and
(c) Take any other action authorized under the provisions of this chapter.
(2) An order issued under subsection (1) of this section is effective on the date of its issuance. Upon the order's issuance, the Secretary of State shall promptly serve each person subject to the order with a copy of the order and a notice that the order has been entered. The order must include a statement of any civil penalty or other administrative remedy to be imposed under subsection (1) of this section, a statement of the costs of investigation that the secretary will seek to recover, a statement of the reasons for the order, and a statement notifying the person of his or her right to a hearing under Section 73-42-13. If a person subject to the order does not request a hearing in writing within thirty (30) days of the date of the order and none is ordered by the hearing officer, then the order, including the imposition of a civil penalty or requirement for payment of the costs of investigation, shall become final as to that person by operation of law.
(3) In a final order, the secretary may charge the actual cost of an investigation or proceeding for a violation of this chapter or a rule adopted or order issued under this chapter.
(4) If a petition for judicial review of a final order is not filed in accordance with Section 73-42-37, or the petition is denied by the court, the secretary may file a certified copy of the final order with the clerk of a court in the jurisdiction where enforcement will be sought. The order so filed has the same effect as a judgment of the court and may be recorded, enforced, or satisfied in the same manner as a judgment of the court.
(5) If a person does not comply with an order issued under this section, the secretary may petition a court of competent jurisdiction to enforce the order and collect administrative civil penalties and costs imposed under the final order. The court may not require the secretary to post a bond in an action or proceeding under this section. If the court finds, after service and opportunity for hearing, that the person did not comply with the order, the court may adjudge the person in civil contempt of the order. The court may grant any relief the court determines is just and proper in the circumstances.
(6) Any person aggrieved by
a final order of the secretary may obtain a review of the order in the circuit
court of the county of residence of the athlete agent, * * * if the athlete
agent is a Mississippi resident, or in the circuit court of the county in
which the educational institution that the student-athlete attended is located,
by filing within thirty (30) days after the entry of the order, a written
petition praying that the order be modified or set aside, in whole or in part.
A copy of the petition shall be served upon the secretary, and the secretary
shall certify and file with the court a copy of the record and evidence upon
which the order was entered. When these have been filed, the court has
exclusive jurisdiction to affirm, modify, enforce or set aside the order, in
whole or in part. The findings of the secretary as to the facts, if supported
by competent material and substantial evidence, are conclusive. The beginning
of proceedings under this subsection does not operate as a stay of the
secretary's order, unless specifically ordered by the court.
SECTION 6. The following shall be codified as Section 73-42-41, Mississippi Code of 1972:
73-42-41. Nothing contained in this chapter shall be interpreted or construed to limit, in any way, the right of Mississippi educational institutions to adopt and enforce their own policies, rules, or regulations addressing athlete agent solicitations or interactions with the student-athletes attending their institution.
SECTION 7. This act shall take effect and be in force from and after July 1, 2018.