California’s passage of the Fair Pay to Play Act (SB 206) started a ripple effect of similar bills being proposed around the country even though its effective date is 2023. Democratic Presidential candidates Bernie Sanders and Andrew Yang have recently voiced support. NIL rights is not a partisan issue. Recent blog posts here have highlighted Republican sponsors in North Carolina and a bipartisan introduction of Michigan’s NIL bill. The NCAA’s initial response to SB 206 was predictable contempt, followed by a public relations about-face and culminated with a recent trip to Washington, D.C. by NCAA President Emmert where he lobbied Congress to take federal action before more states passed similar laws.
This post dissects HB 1505, the New Hampshire House of Representatives bill for college athlete publicity rights of their name, image, and likeness (NIL).
I. The general court seeks to help ensure college athletes have equal rights and economic freedoms afforded to all students and residents in the state of New Hampshire.
II. The general court recognizes the disproportionate negative impact that economic and legal restrictions have on African American and female college athletes.
III. College sports is a $14 billion dollar industry with millionaire coaches and lucrative apparel deals that require college athletes to advertise for commercial interests.
IV. Rules prohibiting college athlete compensation for use of name, image, and likeness rights, or athletics reputation do not bring forth competitive equity and cannot justify denying college athletes equal rights and economic freedom.
The Statement of Purpose section is self-explanatory. Section II highlights two very real and significant inequalities in college athletics. As observed by Shaun Harper of USC’s Center on Race and Equity,African-Americans playing in Power 5 conferences (SEC, ACC, Big Ten, Big XII, Pac XII) made up only 2.4 percent of undergraduate students enrolled across all 65 institutions, but they comprised 56 percent of basketball teams and 55 percent of football teams.
Title IX may have brought female scholarships up to generally 45% of major universities total allotment but lucrative professional opportunities for females are dwarfed by those of men. This bill gives female athletes a chance to monetize their successes.
Sen. Nancy Skinner, author and sponsor of California’s Fair Pay to Play Act told the L.A. Times, “We need this bill so bad. College is now the only time as women that our prowess, our talent as athletes, is even in a spotlight.” UCLA gymnast Katelyn Ohashi certainly wishes this bill was law. She posted a perfect 10 floor exercise routine at the NCAA Championships that has been viewed over 77 million times on YouTube. Ohashi’s gymnastics career is now over.
In this chapter, “postsecondary educational institution” means any campus of the university system of New Hampshire, the community college system of New Hampshire, an independent institution of higher education, or a private postsecondary educational institution.
Most laws include a definitions section. Legal terms are important - the Supreme Court is often in the position of deciding what the legislature meant by a certain word or phrase. Consistency among the laws allows for parallel interpretation and clarity in their applicability.
The definition of postsecondary educational institution seems straightforward, in part, because New Hampshire has relatively few institutions of higher education. However, it differs from the definition of “postsecondary education institution” in RSA 195-D:3, V which does not include private institutions. This makes sense because RSA 195 is part of the Title XV in New Hampshire statutes which legislates education. In contrast, the proposed definition is part of a statute intended to ensure completion of facility projects for public educational and health care structures.
New Hampshire has 11 postsecondary educational institutions with athletics programs including four public institutions (University of New Hampshire, Plymouth State University, Keene State College, and NHTI, Concord’s Community College) and 7 private institutions (Dartmouth College, Saint Anselm College, Southern New Hampshire University, Franklin Pierce University, Colby-Sawyer College, New England College, and Rivier University). 10 of New Hampshire’s 11 postsecondary educational institutions compete in NCAA athletics. NHTI is the lone exception, competing in the USCAA.
I.(a) A postsecondary educational institution shall not uphold any rule, requirement, standard, or other limitation that prevents a student of that institution from fully participating in intercollegiate athletics and earning compensation as a result of the use of the student’s name, image, or likeness rights, or athletic reputation. Earning compensation from the use of a student’s name, image, or likeness rights, or athletic reputation shall not affect a student’s scholarship eligibility or renewal.
(b) An athletic association, conference, or other group or organization with authority over intercollegiate athletics, including, but not limited to, the National Collegiate Athletic Association, shall not prevent a student of a postsecondary educational institution from fully participating in intercollegiate athletics without penalty and earning compensation as a result of the student’s use of his or her name, image, or likeness rights, or athletic reputation.
(c) An athletic association, conference, or other group or organization with authority over intercollegiate athletics, including, but not limited to, the National Collegiate Athletic Association, shall not prevent a postsecondary educational institution from fully participating in intercollegiate athletics without penalty as a result of a student’s use of his or her name, image, or likeness rights, or athletic reputation.
(d) For purposes of this section, an athletics grant-in aid and/or a stipend scholarship from a postsecondary educational institution in which a student is enrolled is not compensation for use of a student’s name, image, and likeness rights, or athletic reputation; and an athletics grant-in-aid or stipend shall not be revoked or reduced as a result of a student earning compensation pursuant to this section.
The first three subsections of Section I lay out common NIL rights for college athletes. Each of these three sections define the NIL rights of college athletes and protect their participation.
HB 1505 consistently uses the term “students” compared to California’s use of “student-athletes” and still others covering “college athletes.” California has separate student-athlete legislation so it is likely its Fair Pay to Play Act used the same terminology to promote consistency for athletes’ rights legislation. The terms all refer to the same group of people, but the use of “athlete” rather than “student” highlights the hypocrisy of the NCAA’s amateurism requirement. The term “student-athlete” has been used by NCAA supporters to promote the archaic notion that athletes are students who happen to play sports. The contrary is true, athletes’ free labor provide the buildings education and administration at many Power 5 schools.
Paragraph (a) prohibits institutions from punishing or prohibiting athletes from participation or exercising NIL rights. This includes scholarship protections. Paragraphs (b) and (c) preclude athletic associations, conferences, and other groups from punishing or precluding participation of students (para. b) and institutions’ teams (para. c) from full participation. This is likely in reply to the NCAA’s initial response to California’s law which was to threaten banning schools from conference and national championship tournaments. The NCAA has publicly retreated from this position, but has sought federal legislation to preclude states’ rights on this issue.
Paragraph (d) addressing grant-in-aid is a response to a March, 2019 ruling that the NCAA cannot limit compensation or benefits for student-athletes that are "related to education." California Federal Judge Claudia Wilken decided this issue in In re NCAA Athletic Grant-in-Aid Cap Antitrust Litigation. Since this injunction, NCAA scholarships cover full cost of attendance that were not previously included in athlete scholarships. Until this ruling, full scholarship athletes paid a few thousand dollars yearly in costs for things like books.
II.(a) A postsecondary educational institution, athletic association, conference, or other group or organization with authority over intercollegiate athletics shall not interfere with or prevent a student from fully participating in intercollegiate athletics for obtaining professional representation in relation to contracts or legal matters, including, but not limited to, representation provided by athlete agents, financial advisors, or legal representation provided by attorneys.
(b) An athletic association, conference, or other group or organization with authority over intercollegiate athletics, including, but not limited to, the National Collegiate Athletic Association, shall not prevent a postsecondary educational institution from fully participating in intercollegiate athletics without penalty as a result of a college athlete obtaining professional representation in relation to contracts or legal matters, including, but not limited to, representation provided by athlete agents, financial advisors, or legal representation provided by attorneys.
(c) Professional representation provided by athlete agents, financial advisors and/or attorneys shall be by persons licensed by the state.
Section II is all about allowing athletes to hire representation of athlete agents, financial advisors, or legal representation. This makes eminent sense. College athletes should be able to be fully informed by professionals in fields related to NIL rights. The professional licensure requirement seeks to preclude rogue actors from exploiting college athletes for their own benefit.
A glaring omission to this section seen in other NIL bills is the lack of requirement that these professionals comply with other state and federal law in the course of their athlete representation. Specifically, the federal Sports Agent Responsibility and Trust Act, established in Chapter 104 (commencing with Section 7801) of Title 15 of the United States Code established important requirements for these professionals.
New Hampshire law defines “athlete agent” as an individual who enters into an agency contract with a student-athlete or, directly or indirectly, recruits or solicits a student-athlete to enter into an agency contract. RSA 332-J:1(II) The term includes an individual who represents to the public that the individual is an athlete agent. The term does not include a spouse, parent, sibling, or grandparent, or guardian of the student-athlete or an individual acting solely on behalf of a professional sports team or professional sports organization. This statute has no geographic restrictions for whether state, federal, or collectively bargained licenses may be authorized. It has no pro hac vice language which applies when lawyers not barred in court of jurisdiction seek to use their out-of-state license for authorized practice.
Attorneys are licensed by the New Hampshire Bar which has strict codes of ethics and licensure. The term “financial advisor” in HB 1505 needs further definition. Contrary to agents and attorneys, this term is not otherwise defined in New Hampshire law. “Investment advisor” is defined in NH’s Uniform Securities Act. “Financial advisor” without further definition could include almost any person giving another advice on what to do with their money, contract, and NIL rights. HB 1505 does not include any requirement that the professionals covered therein be licensed by professional leagues if providing representation involving those leagues.
III.(a) A college athlete shall not enter into an apparel contract providing compensation to the athlete for use of the athlete’s name, image, or likeness rights which requires a student to display a sponsor’s apparel or otherwise advertises for the sponsor during official team activities if such provisions are in conflict with a provision of the athlete’s team contract.
(b) A college athlete who enters into a contract providing compensation to the athlete for use of the athlete’s name, image, or likeness rights, or athletics reputation shall disclose the contract to an official of the institution, to be designated by the institution.
(c) An institution asserting a conflict described in subparagraph (a) shall disclose to the athlete and the athlete’s legal representation, if applicable, the full contract they assert to be in conflict.
Section III addresses conflicts between team contracts and athlete contracts. Section (c) is a notice requirement to institutions they must inform the athlete of the perceived conflict. Section (b) places the same disclosure requirement on the athlete.
The key phrase in this section is found in paragraph (a) – “official team activities”. This precludes a Reebok-sponsored athlete from wearing Reebok apparel during official team activities if they play for a Nike-sponsored school. Games, practice, and in-season team weightlifting are certainly official team activities, but HB 1505 lacks a definition of this key term. It also does not address NIL rights of display during off-season activities.
Paragraph (a) also only precludes apparel contracts that create conflict between athlete and institutional contracts. Thus, food and beverage contracts would have no preclusion during official team activities or non-official team activities…wherever that line may lie.
This section prevents institutions from entering contracts preventing athletes’ full exercise of NIL rights when not engaged in official team activities. The NCAA bylaws use the term “athletically related activities” to limit practice time by week and set regulations – not “official team activities.”
It is important to note that contrary to many NIL bills, nowhere does HB 1505 preclude prospective college athletes from profiting from their NIL. This is surprising because the NCAA and opponents to NIL rights cite unfair competitive balance and corruption as cornerstones of their argument. It would be wise to include this language.