College Athlete Economic Freedom Act

Bill: 118-hr-4948
Sponsor: full_name: Rep. Trahan, Lori [D-MA-3]
Introduced: 2023-07-26
Policy area: Sports and Recreation
Subjects: Athletes

Higher education

Licensing and registrations

Retail and wholesale trades

School athletics

Wages and earnings
Latest action: action_date: 2023-07-28
text: Referred to the Subcommittee on Innovation, Data, and Commerce.

Summaries:

tv_txt: I 118th CONGRESS 1st Session H. R. 4948 IN THE HOUSE OF REPRESENTATIVES July 26, 2023 Mrs. Trahan (for herself and Ms. Clarke of New York ) introduced the following bill; which was referred to the Committee on Energy and Commerce , and in addition to the Committee on the Judiciary , for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To establish name, image, and likeness rights for college athletes at institutions of higher education, and for other purposes.

1. Short title This Act may be cited as the College Athlete Economic Freedom Act . 2. Definitions In this Act: (1) Athlete agent The term athlete agent has the meaning given the term in section 2 of the Sports Agent Responsibility and Trust Act ( 15 U.S.C. 7801 ). (2) Collective representative The term collective representative — (A) means an individual or organization that represents a group of college athletes or prospective college athletes to negotiate contracts for the use of the names, images, or likenesses of such athletes or group of athletes; and (B) includes— (i) legal representatives; (ii) athlete agents; and (iii) players' associations. (3) College athlete The term college athlete means an individual who participates in or is eligible to participate in an intercollegiate sport for an institution of higher education. (4) Compensation The term compensation means any payment, remuneration, or benefit provided to a college athlete or prospective college athlete in exchange for the use of the name, image, or likeness of the college athlete or prospective college athlete. (5) Grant-in-aid The term grant-in-aid means a scholarship, grant, or other form of financial assistance that is provided by an institution of higher education to a college athlete for the college athlete’s undergraduate or graduate course of study. (6) Image The term image , with respect to a college athlete or prospective college athlete, means any photograph, video, or computer-generated representation that reasonably identifies the college athlete or prospective college athlete. (7) Institution of higher education The term institution of higher education has the meaning given the term in section 101 of the Higher Education Act of 1965 ( 20 U.S.C. 1001 et seq. ). (8) Institutional name, image, and likeness collective The term institutional name, image, and likeness collective means any entity that is— (A) either— (i) subject to the Federal Trade Commission Act ( 15 U.S.C. 41 et seq. ); or (ii) an organization not organized to carry on business for its own profit or the profit of its members; and (B) with respect to college athletes enrolled at, or prospective college athletes for, an institution of higher education or a limited group of institutions of higher education, supports the athletic interests of such institutions of higher education by— (i) accepting contributions for the purpose of entering into or funding name, image, or likeness agreements with such college athletes; or (ii) arranging for such college athletes to be paid by third parties for the commercial use of their names, images, or likenesses. (9) Intercollegiate athletic association The term intercollegiate athletic association means any association, conference, or other group or organization that— (A) exercises authority over intercollegiate athletics and the recruitment of college athletes or prospective college athletes; and (B) is engaged in interstate commerce or in any industry or activity affecting interstate commerce. (10) International college athlete The term international college athlete means an alien (as defined in section 101(a) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a) )) lawfully present in the United States in the status of a nonimmigrant described in subparagraph (F)(ii) of section 101(a)(15) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(15) ) who participates in or is eligible to participate in an intercollegiate sport for an institution of higher education. (11) Likeness The term likeness , with respect to a college athlete or prospective college athlete, means the uniquely identifiable voice, catch phrase, or any other mark that when used in a context that reasonably identifies the college athlete or prospective college athlete. (12) Name The term name , with respect to a college athlete or prospective college athlete, means the first or last name, or a nickname, of the college athlete or prospective college athlete when used in a context that reasonably identifies the college athlete or prospective college athlete. (13) Prospective college athlete The term prospective college athlete means an individual who— (A) has not enrolled at an institution of higher education; and (B) may be recruited by an institution of higher education. (14) Third party The term third party means an individual or entity other than an institution of higher education or an intercollegiate athletic association. 3. Athlete rights to market name, image, and likeness (a) Right To market use of name, image, and likeness (1) In general An institution of higher education or intercollegiate athletic association may not enact or enforce any rule, requirement, standard, or other limitation that prevents college athletes or prospective college athletes, individually or as a group, from marketing the use of their names, images, or likenesses. (2) Collusion An institution of higher education may not coordinate with any other institution of higher education or third party to impose a limitation on the amount of payment offered to a college athlete, prospective college athlete, or group of college athletes or prospective college athletes under a contract for the use of the name, image, or likeness of the college athlete, prospective college athlete, or group of college athletes or prospective college athletes, unless such a limitation is the result of negotiations with a collective representative. (3) Right to collective representation An institution of higher education or intercollegiate athletic association may not enact or enforce any rule, requirement, standard, or other limitation, or engage in conduct that prevents college athletes from forming or recognizing, or interferes with such formation or recognition of, a collective representative— (A) to facilitate contracts for the use of the name, image, or likeness of college athletes, or group licensing agreements; or (B) to provide representation for college athletes. (4) Group licensing (A) In general An institution of higher education or intercollegiate athletic association may not use the name, image, or likeness of any group of college athletes for any type of promotion, including a media rights agreement, unless the institution of higher education or intercollegiate athletic association obtains a license from the group for that purpose. (B) Notification An institution of higher education or intercollegiate athletic association seeking a license described in subparagraph (A) shall notify the group of college athletes concerned with respect to— (i) the manner in which the name, image, or likeness of the group will be used under the license; and (ii) the amount of revenue the institution of higher education or intercollegiate athletic association will receive in connection with any type of promotion, including a media rights agreement and any other revenue source, based on the use of the name, image, or likeness of the group. (5) Grants-in-aid Receipt of compensation for the use of the name, image, or likeness of a college athlete or prospective college athlete shall not adversely affect— (A) the eligibility or opportunity of a college athlete or prospective college athlete to apply for a grant-in-aid; or (B) the amount, duration, or renewal of the grant-in-aid of a college athlete or prospective college athlete. (b) Equitable institutional support (1) In general An institution of higher education, an intercollegiate athletic association, or a party affiliated with an institution of higher education or an intercollegiate athletic association that provides direct or indirect support to college athletes with respect to the marketing of their names, images, or likenesses shall make such support available and accessible to all college athletes in the applicable athletic program, regardless of gender, race, or participating sport. (2) Institutional name, image, and likeness collectives Each institutional name, image, and likeness collective— (A) shall— (i) for purposes of paragraph (1), be considered to be affiliated with each institution of higher education that the collective supports the athletic interests of; (ii) register with the Federal Trade Commission as an institutional name, image, and likeness collective, including by identifying the institutions of higher education with which the collective affiliates; (iii) maintain, with respect to college athletes enrolled at each affiliated institution of higher education— (I) the number of name, image, or likeness agreements facilitated by the collective, disaggregated by gender, race, and participating sport; (II) the total monetary value of name, image, or likeness agreements facilitated by the collective, disaggregated by gender, race, and participating sport; and (III) the number of college athletes or prospective college athletes assisted by the collective, disaggregated by gender, race, and participating sport; and (iv) by September 1 of each year, submit to the Federal Trade Commission a report containing the information described in subclauses (I) through (III) of clause (iii), corresponding to the time period between July 1 of the previous year and June 30 of that year; and (B) shall not discriminate, on the basis of gender, race, or participating sport, in the facilitation of name, image, or likeness agreements for college athletes in the athletic program of or prospective college athletes for any particular institution of higher education. (3) Determinations under title IX For purposes of determinations about discrimination on the basis of sex under title IX of the Education Amendments of 1972 ( 20 U.S.C. 1681 et seq. ), the support of an institution of higher education or intercollegiate athletic association related to athletes’ names, images, or likenesses shall be considered, including how an institution of higher education or intercollegiate athletic association promotes sports predominantly comprised of women relative to men. (c) Right to representation (1) Ability for college athletes to retain representation An institution of higher education or intercollegiate athletic association may not prevent a college athlete or prospective college athlete from fully participating in intercollegiate athletics based on the college athlete or prospective college athlete having obtained professional representation with respect to a contract or legal matter, including— (A) representation provided by an athlete agent, financial advisor, or collective representative; and (B) legal representation provided by an attorney. (2) Prohibitions on the regulation of representation An institution of higher education or intercollegiate athletic association may not regulate the legal, financial, or agency representation of college athletes and prospective college athletes with respect to the marketing of their names, images, or likenesses, including the certification of such legal, financial, or agency representation. (d) Prohibition on waiver (1) In general Except as provided in paragraph (2), a college athlete, prospective college athlete, institution of higher education, intercollegiate athletic association, or any other person may not enter into any agreement or a legal settlement that waives or permits noncompliance with this Act. (2) Exception An institution of higher education or intercollegiate athletic association may restrict the commercial use of the name, image, or likeness of college athletes if such a restriction is part of a collective bargaining agreement between the institution of higher education or intercollegiate athletic association and college athletes. 4. Grants for analyzing name, image, likeness, and athletic reputation monetization (a) Definitions In this section: (1) Eligible entity The term eligible entity means— (A) a business in the United States; (B) a public or private education and research organization in the United States; or (C) a consortium of entities described in subparagraph (A) or (B). (2) Secretary The term Secretary means the Secretary of Commerce. (b) Grants authorized Annually, the Secretary may award a grant to, or enter into a contract or a cooperative agreement with, an eligible entity for the purpose of conducting a market analysis of the monetization of the rights granted to college athletes and prospective college athletes under this Act during the 1-year period preceding the date on which the analysis is completed. (c) Requirements An eligible entity that receives a grant or enters into a contract or cooperative agreement to conduct an analysis under subsection (b) shall— (1) make the analysis and information relating to the analysis publicly available, including— (A) the surveys and interviews the eligible entity conducted during the course of the analysis; and (B) estimates of the compensation received by college athletes and prospective college athletes during the 1-year period preceding the date on which the analysis is completed as a result of the monetization of the names, images, and likenesses of those college athletes and prospective college athletes, separated by— (i) gender; (ii) race; and (iii) sport; and (2) provide recommendations to the Secretary to address any disparity among estimates based on the factors described in clauses (i), (ii), and (iii) of paragraph (1)(B). (d) Public availability of recommendations The Secretary shall make any recommendations received under subsection (c)(2) publicly available. (e) Authorization of appropriations There are authorized to be appropriated to the Secretary such sums as may be necessary to carry out this section. 5. International college athletes (a) Eligibility for F visas Section 101(a)(15)(F) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(15)(F) ) is amended by— (1) by striking (i) an alien having and inserting (i)(I) an alien having ; (2) by redesignating clauses (ii) and (iii) as subclauses (II) and (III), respectively; (3) by striking the semicolon and inserting ; or ; and (4) by adding at the end the following: (ii) an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide college athlete (as defined in section 2 of the College Athlete Economic Freedom Act ) qualified to pursue a full course of study and who seeks to enter the United States temporarily and for the purpose of pursuing a course of study at an established college, university, or other academic institution while also participating in intercollegiate athletics, which institution or place of study shall have agreed to report to the Secretary of Homeland Security the termination of attendance of each nonimmigrant student, and if any such institution of learning or place of study fails to make reports promptly the approval shall be withdrawn; . (b) Name, image, and likeness activities by international college athletes Section 212(a)(5)(A) of the Immigration and Nationality Act ( 8 U.S.C. 1182(a)(5)(A) ) is amended by adding at the end the following: (v) International college athletes Notwithstanding clause (i), an alien who seeks admission to the United States to compete in intercollegiate athletics as an international college athlete nonimmigrant described in subparagraph (F)(ii) of section 101(a)(15) shall not be inadmissible for having participated or engaged in activities described in section 3 of the College Athlete Economic Freedom Act (relating to the marketing of the name, image, or likeness of the alien), individually or as a member of a group of athletes, and such activities shall not constitute a violation of or failure to maintain such nonimmigrant status. . (c) Employment authorization for name, image, and likeness activity Section 214 of the Immigration and Nationality Act ( 8 U.S.C. 1184 ) is amended by adding at the end the following: (s) International college athletes In the case of an international college athlete nonimmigrant described in section 101(a)(15)(F)(ii) who participates in intercollegiate athletics, the Secretary of Homeland Security shall— (1) authorize the alien, incident to status, to engage in employment activities described in section 3 of the College Athlete Economic Freedom Act (relating to the marketing of the nonimmigrant's name, image, or likeness of the nonimmigrant), individually or as a member of a group of athletes, in the United States during the period of authorized admission; and (2) provide the international college athlete nonimmigrant with an employment authorized endorsement or other appropriate document signifying authorization of employment. . (d) Employee status of college athletes In the event that any Federal or State court of competent jurisdiction or any government agency declares college athletes to be employees of an institution of higher education or intercollegiate athletic association— (1) participation in intercollegiate athletics shall not violate or be considered to be a violation of or a failure to maintain nonimmigrant status described in subparagraph (F)(ii) of section 101(a)(15) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(15) ); and (2) international college athletes admitted to the United States pursuant to visas issued under that subparagraph may be paid for their participation in college athletics in the same manner as other college athletes are paid. (e) Evidence of employment eligibility Endorsement of the Form I–20 (Certificate of Eligibility for Nonimmigrant Student Status) of an international college athlete by a designated school official for name, image, or likeness activities described in section 3 shall serve as evidence of eligibility for employment in the United States. 6. Enforcement provisions (a) Unfair or deceptive act or practice (1) In general A violation of section 3 shall be treated as a violation of a rule defining an unfair or deceptive act or practice prescribed under section 18(a)(1)(B) of the Federal Trade Commission Act ( 15 U.S.C. 57a(a)(1)(B) ). (2) Actions by the Commission The Commission shall enforce section 3 in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act ( 15 U.S.C. 41 et seq. ) were incorporated into and made a part of this Act. (3) Enforcement related to nonprofit organizations Notwithstanding section 4, 5(a)(2), or 6 of the Federal Trade Commission Act ( 15 U.S.C. 44 , 45(a)(2), 46) or any jurisdictional limitation of the Federal Trade Commission, the Commission shall also enforce this Act and the regulations promulgated under this Act, in the same manner provided in paragraphs (1) and (2) of this subsection, with respect to organizations not organized to carry on business for their own profit or that of their members. (b) Private right of action (1) In general An individual who is aggrieved by a violation of section 3 may bring a civil action in an appropriate Federal district court of competent jurisdiction. (2) Damages; costs and attorney’s fees A court may award to a prevailing party in a civil action brought under paragraph (1)— (A) actual damages sustained by the party as a result of the violation that is the subject of the action; and (B) the costs of the action and reasonable attorney’s fees. (c) Sherman Act A violation of this Act shall be deemed to be a per se violation of the Sherman Act ( 15 U.S.C. 1 et seq. ) and subject to all remedies and rights afforded under that Act. 7. State preemption (a) In general A State may not enforce a State law relating to the ability of college athletes to enter into contracts with third parties for the use of their names, images, or likenesses pursuant to this Act. (b) Exception for the certification of athlete agents A State may enforce a State law or regulation relating to the certification of athlete agents under the Sports Agent Responsibility and Trust Act ( 15 U.S.C. 7801 et seq. ). 8. Rule of construction Nothing in this Act shall affect the treatment of qualified scholarships under section 117 of the Internal Revenue Code of 1986.