Vital COVID Issue: Paid Student Athletes?

by Steve Haner

I warned everybody to watch for extraneous issues buried in the new budget bill pending at the special session which starts tomorrow. Who knew that regulating the potential income of student athletes was a vital COVID emergency issue that couldn’t wait for the regular General Assembly meetings in January?

What follows should have been a stand-alone bill, but that would have opened the door to plenty of other issues. Clearly this is a response to the recent court decisions opening this door, and the new NCAA rules on the subject.

Herewith the provision, as it appears in Governor Ralph Northam’s introduced bill: 

18.a. That no institution or an agent thereof; athletic association; athletic conference; or other organization with authority over intercollegiate athletics shall:

1. Provide a prospective or current student-athlete with compensation for the use of his or her name, image, or likeness;

2. Prohibit or prevent a student-athlete from earning compensation for the use of his or her name, image, or likeness, except as set forth in this subsection;

3. Prohibit or prevent a student-athlete from obtaining professional representation by an athlete agent licensed pursuant to Chapter 5.2 (§ 54.1-526 et seq.) of Title 54.1 of the Code of Virginia, or legal representation by an attorney licensed to practice law in the Commonwealth, for issues related to name, image, or likeness;

4. Declare ineligible for competition or reduce, cancel or not renew an athletic scholarship because a student-athlete earns compensation for the use of his or her name, image, or likeness; or

5. Prevent an institution from participating in intercollegiate athletics because a student-athlete earns compensation for the use of his or her name, image or likeness, or obtains representation for related issues.

b. An institution may prohibit a student-athlete from earning compensation for the use of his or her name, image or likeness while the individual is engaged in academic, official team, or department activities, including competition, practice, travel, academic services, community service, and promotional activities.

c. An institution may prohibit a student-athlete from using his or her name, image or likeness to earn compensation if the proposed use conflicts with an existing agreement between the institution and a third party.

d. A student-athlete shall be prohibited from earning compensation for the use of his or her name, image or likeness in connection with any of the following:

1. Casinos or gambling, including sports betting;

2. Alcohol products;

3. Adult entertainment;

4. Cannabis, cannabinoids, cannabidiol, or other derivatives;

5. Dangerous or controlled substances;

6. Performance enhancing drugs or substances (e.g., steroids, human growth hormone);

7. Drug paraphernalia;

8. Tobacco and electronic smoking products and devices; and

9. Weapons, including firearms and ammunition.

e. Any agreement entered into by a student athlete that provides compensation for the use of a student-athlete’s name, image, or likeness shall be disclosed prior to execution of the agreement by such student-athlete in a manner designated by the institution the student-athlete is attending.  If a student-athlete discloses a potential agreement that conflicts with an existing institutional agreement, the institution shall disclose the relevant terms of the conflicting agreement to the student-athlete.

f. A student-athlete shall not earn compensation for the use of his or her name, image, or likeness in exchange for attendance at an institution or pay-for- performance.

g. A student-athlete shall not use an institution’s facilities or uniforms, or the institution’s intellectual property, including logos, indicia, registered and unregistered trademarks, or products protected by copyright, unless otherwise permitted by the institution.

h. For the purposes of this subsection:

“Institution” means a private institution of higher education or baccalaureate public institution of higher education.

“Pay-for-performance” means payments and compensation provided to student-athletes that is contingent on the student athlete’s achieving certain performance goals or objectives.

“Student-athlete” means an individual enrolled at an institution who participates in intercollegiate athletics.

Legislating in the budget? We don’t do that in Virginia. Well, we didn’t used to. This issue is not, repeat not, properly before the money committees by themselves and burying it in the budget ties the hands of anybody inclined to fight it. No amendments, remember? Not cool.

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15 responses to “Vital COVID Issue: Paid Student Athletes?”

  1. DJRippert Avatar

    Give a Marxist an inch and they’ll take a mile every time. Legislating in the budget with no possibility of amendments? Really?

    “Oh, Ralph the racist tyrant won’t keep overstepping his boundaries once the COVID emergency is over,” said the liberals.

    And yet, here we are.

    What does this even mean …. “A student-athlete shall not earn compensation for the use of his or her name, image, or likeness in exchange for attendance at an institution or pay-for- performance.”

    I guess that the “in exchange for attendance at an institution” means that the student can’t be tempted to come to a university with money. However, after he or she decides to attend …. Katy bar the door. Of course, a top ranked high school athlete can easily see which universities end up with boosters paying top dollar for the athlete’s name, image or likeness.

    Maybe Michale Bills can pay a small fortune to Wahoo athletes to support his anti-climate change agenda.

    How about a prohibition against athletes being paid to support political candidates?

    1. Stephen Haner Avatar
      Stephen Haner

      I LIKE it!

      Not sure whether this was all done in darkness, or there was no coverage because the media is so decimated. We should find out quickly whether this proves controversial. For the most part, the lawyers are not on the money committees and may rebel.

      1. DJRippert Avatar

        The actual NIL points in the “budget” are not that bad. For example, a lot of top tier college athletes are still minors in the eyes of the law. They should not endorse alcohol they can’t legally buy or casinos they can’t legally enter. I would have made the restriction “under 21” but infantilizing college students seems to have become a theme in Virginia.

        However, the idea of legislating through the budgeting process (with no amendments) is horrible. Using a special session designed to address COVID to legislate without the legislature voting on the merits of the NIL matter is even worse.

        There absolutely is a slippery slope in politics. We’ve seen it with Supreme Court nominations and the filibuster process at the national level.

        Now we’re seeing it at the state level.

        Like I said, give a Marxist an inch and they will try to take a mile. Give them that mile and they will take away democracy completely.

        1. Dick Hall-Sizemore Avatar
          Dick Hall-Sizemore

          “No amendments” is not literally the case. The House has decided that individual members cannot offer budget amendments to be considered by the Appropriation Committee. I am not sure how the Democrats can prohibit members from offering amendments on the floor, although budget floor amendments always fare poorly.

          And then there is the Senate. I don’t think the Senate has made the same declaration regarding submission of amendments.

          Furthermore, the no amendments rule does not apply to the two money committees. If they wish to, they can report the budget bill to full chamber with amendments.

  2. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    Unfortunately, legislating in the budget has been done by all governors (and legislatures) for many years. It is not a good way to do business. The practice seems to have become more common over the years. It is such a convenient and efficient way to keep possibly controversial issues away from the policy committees. (Disclosure: There are still some policy provisions in the budget bill that have my fingerprints on them.)

    1. James C. Sherlock Avatar
      James C. Sherlock

      The appropriators also kill bills passed overwhelmingly by the policy committees, not for budget reasons but for policy disagreements. See the Health Enterprise Zone bill that net would have saved money. Corruption trumps everything in this coin-operated state government.

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        “Corruption” seems to be a key word used on this blog for any action one disagrees with. There are legitimate reasons for a money committee to kill a bill reported by a policy committee, primarily on the grounds of cost. They also do it for policy reasons. Many times the members of the policy committees will support a bill for political reasons, knowing that the money committee will kill it. There are valid criticisms to be made of this process, but “corruption” is not one of them.

        1. DJRippert Avatar

          I consider it corrupt to willfully bypass either the letter or the intent of a ratified constitution.

          When the General Assembly ignored the requirement in the Virginia Constitution for contiguous and compact political divisions that was corrupt. When the state Supreme Court refused to rule on the matter because it couldn’t define “contiguous and compact” that was also corrupt.

          Virginia, like 42 other states, has a single purpose rule which is supposed to force each bill to be in reference to a single purpose. This common sense rule prevents the disgraceful federal practice of lining bills with pork or other random proposed laws that have little to do with the main point of the bill. The single purpose rule is intended to make politicians accountable by forcing them to vote on a single topic with each bill.

          Legislating through the budget, regardless of how often it is done, allows politicians to bypass the intent of the single purpose rule. Doing that willfully is corrupt.

          Applied correctly, “corruption” can entail violating laws, rules, regulations or the principles of democracy as defined in a ratified constitution. In my mind it can also be applied to ethical violations that are not necessarily codified into law. For example, selling out the citizens of Virginia to get money from Dominion is not technically illegal. However, it is corrupt.

  3. James Wyatt Whitehead Avatar
    James Wyatt Whitehead

    This is so Uncle Tom of Uncle Ralph. What do you mean a student athlete can’t gain compensation for his/her/them/they/or whatever name, likeness, or image in the arenas of drugs, alcohol, tobacco, firearms, and casinos? All are legal. Keeping the black the student athlete on the plantation seems to be the theme of HB 7001.

  4. James C. Sherlock Avatar
    James C. Sherlock

    Thanks, Steve. Your basic point is the key one. Inserting policy changes into a budget bill is another cut on the body of representative government.

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      The “body of representative government”, i.e. the legislature, can put a stop to this practice anytime it wishes to.

      1. Stephen Haner Avatar
        Stephen Haner

        Agreed. There is also an untold story from some sports reporter, etc., on what is going on here. Did anybody in the secret discussions (certainly nothing public) represent the interests of the young men and women? This looks like the school’s wrote it.

  5. LarrytheG Avatar

    Legislation for as long as I can remember has often been said to be akin to sausage-making, but that don’t really make it “corrupt”. There is nothing in the Constitution that dictates HOW legislation should be done or not. That process is basically delegated to the legislators, who can and do make up their own rules. Was not that long ago that critics derided some legislators for saying that they would have to pass legislation before they knew what was actually in it! 😉

    How many times have we read that some “provision” was “inserted” into legislation at the last minute and not noticed until after the fact?

    Yes, it happens, on a regular basis – both both sides – for quite some time as I’m quite sure that Haner can confirm along with Dick.

    So when it happens, and the other side whines about “corruption and “outrage” – it lacks a certain legitimacy because as Dick said, ANYTIME a majority of legislators REALLY think it’s bad policy, they CAN stop it!

    but they don’t , so basically it’s an acceptable practice, as odious as it sounds and is.

    1. Stephen Haner Avatar
      Stephen Haner

      I never used the word corruption. Sneaky comes to mind in this case. But, indeed there may have been a big stakeholder process and just no reporter even noticed….

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