[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 238 Introduced in Senate (IS)]

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117th CONGRESS
  1st Session
                                 S. 238

To establish name, image, likeness, and athletic reputation rights for 
               college athletes, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            February 4, 2021

  Mr. Murphy introduced the following bill; which was read twice and 
   referred to the Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
To establish name, image, likeness, and athletic reputation rights for 
               college athletes, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``College Athlete Economic Freedom 
Act''.

SEC. 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) Athletic reputation.--The term ``athletic reputation'' 
        means, with respect to a college athlete or prospective college 
        athlete, the recognition or fame of the athlete relating to the 
        participation or performance of the college athlete or 
        prospective college athlete in a sport.
            (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''--
                    (A) means any payment, remuneration, or benefit 
                provided to a college athlete or prospective college 
                athlete in exchange for the use of the name, image, 
                likeness, or athletic reputation of the college athlete 
                or prospective college athlete; and
                    (B) does not include--
                            (i) a grant-in-aid; or
                            (ii) a stipend scholarship from the 
                        institution of higher education in which a 
                        college athlete is enrolled.
            (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) 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.
            (9) 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.
            (10) 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.
            (11) 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.
            (12) Third party.--The term ``third party'' means an 
        individual or entity other than an institution of higher 
        education or an intercollegiate athletic association.

SEC. 3. ATHLETE RIGHTS TO MARKET NAME, IMAGE, LIKENESS, AND ATHLETIC 
              REPUTATION.

    (a) Right To Market Use of Name, Image, Likeness, and Athletic 
Reputation.--
            (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, likenesses, and athletic reputations.
            (2) Collusion.--An institution of higher education may not 
        coordinate with any other institution of higher education or 
        third party to limit 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, likeness, or athletic reputation of 
        the college athlete, prospective college athlete, or group of 
        college athletes or prospective college athletes.
            (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 to facilitate 
        group licensing agreements or provide representation for 
        college athletes.
            (4) Group licensing.--A third party may not use the name, 
        image, likeness, or athletic reputation of any member of a 
        group of college athletes to market any product unless the 
        third party obtains a license from the group for that purpose.
            (5) Grants-in-aid.--Receipt of compensation for the use of 
        the name, image, likeness, or athletic reputation 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.
            (6) Equitable institutional support.--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, likenesses, and athletic 
        reputations shall make such support accessible to all college 
        athletes in the applicable athletic program, regardless of 
        gender, race, or participating sport.
    (b) 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 or 
                financial advisor; 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, 
        likenesses, or athletic reputations, including the 
        certification of such legal, financial, or agency 
        representation.
    (c) Prohibition on Waiver.--A college athlete, a prospective 
college athlete, an institution of higher education, an 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.

SEC. 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 under this Act 
during the 1-year period preceding the date of the analysis.
    (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 during the 1-year period preceding the 
                date of the analysis as a result of the monetization of 
                the names, images, likenesses, and athletic reputations 
                of those college athletes, separated by--
                            (i) gender;
                            (ii) race; and
                            (iii) sport; and
            (2) provide recommendations to the Secretary to address any 
        disparate estimates described in 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.

SEC. 5. 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.

SEC. 6. STATE PREEMPTION.

    (a) In General.--A State may not enforce a State law relating to 
the ability of college athletes to enter into contracts for the use of 
their names, images, likenesses, or athletic reputations 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.).

SEC. 7. RULE OF CONSTRUCTION.

    Nothing in this Act shall affect the treatment of qualified 
scholarships under section 117 of the Internal Revenue Code of 1986.
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