H.B. No. 2804
AN ACT
relating to use of the name, image, or likeness of a student athlete
participating in an intercollegiate athletic program at an
institution of higher education.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 51.9246, Education Code, is amended by
adding Subsections (a-1), (c-1), (g-1), (g-2), (l), (m), (n), (o),
and (p) and amending Subsections (g) and (i) to read as follows:
(a-1) For purposes of this section, official team
activities of an intercollegiate athletic program at an institution
to which this section applies include any activity the institution
designates as an official team activity.
(c-1) An athletic association, an athletic conference, or
any other group or organization with authority over an
intercollegiate athletic program at an institution to which this
section applies may not enforce a contract term, a rule, a
regulation, a standard, or any other requirement that prohibits the
institution from participating in intercollegiate athletics or
otherwise penalizes the institution or the institution's
intercollegiate athletic program for performing, participating in,
or allowing an activity required or authorized by this section.
(g) A student athlete participating in an intercollegiate
athletic program at an institution to which this section applies:
(1) shall, before entering into the contract, disclose
to the institution, in the manner prescribed by the institution,
any proposed contract the student athlete may sign for use of the
student athlete's name, image, or likeness;
(2) may not enter into a contract for the use of the
student athlete's name, image, or likeness if:
(A) any provision of the contract conflicts with
a provision of the student athlete's team contract, a provision of
an institutional contract of the institution, a policy of the
athletic department of the institution, or a provision of the honor
code of the institution;
(B) the compensation for the use of the student
athlete's name, image, or likeness is provided:
(i) in exchange for athletic performance or
accepting an offer of admission to attend [attendance at] the
institution;
(ii) by the institution;
(iii) in exchange for an act that occurs
while the athlete is engaged in an official team activity [property
owned by the institution or for providing an endorsement while
using intellectual property or other property owned by the
institution]; or
(iv) in exchange for an endorsement of
alcohol, tobacco products, e-cigarettes or any other type of
nicotine delivery device, anabolic steroids, sports betting,
casino gambling, a firearm the student athlete cannot legally
purchase, or a sexually oriented business as defined in Section
243.002, Local Government Code; or
(C) the duration of the contract extends beyond
the student athlete's participation in the intercollegiate
athletic program;
(3) is not considered an employee of the institution
based on the student athlete's participation in the intercollegiate
athletic program; [and]
(4) may earn compensation from selling the student
athlete's autograph in a manner that does not otherwise conflict
with a provision of this section; and
(5) may not use an institution's facility, uniform,
registered trademark, copyright-protected product, or official
logo, mark, or other indicia in connection with a contract for the
use of the student athlete's name, image, or likeness unless the
student athlete obtains the institution's express permission.
(g-1) The following activities do not constitute
compensation provided by an institution to which this section
applies under Subsection (g)(2)(B)(ii):
(1) an activity authorized under Subsection (m); or
(2) recognition by an institution to which this
section applies of a third-party entity that compensates a student
athlete for the use of the student athlete's name, image, or
likeness, or the entity's donors, including the institution's
provision of priority status or other items of de minimis value
equivalent to status or items the institution provides to the
institution's donors.
(g-2) An institution may not authorize a use described by
Subsection (g)(5) unless the institution requires that:
(1) the student athlete and the person contracting for
the use of the student athlete's name, image, or likeness comply
with any requirements the institution establishes, including
requirements related to licensing; and
(2) the institution is compensated for the use in an
amount consistent with market rates.
(i) An institution to which this section applies shall
require a student athlete participating in an intercollegiate
athletic program at the institution to attend a financial literacy
and life skills course during [workshop at the beginning of] the
student's first [and third] academic year [years] at the
institution. The course [workshop] must be at least five hours in
duration and include information on financial aid, debt management,
time management, budgeting, and academic resources available to the
student athlete. The institution may not during the course
[workshop] allow any provider of financial products or services to:
(1) market, advertise, or refer the provider's
services to a student athlete; or
(2) solicit a student athlete to use the provider's
services.
(l) Information written, produced, collected, assembled, or
maintained by an institution to which this section applies that
includes or reveals any term of a contract or proposed contract for
the use of the student athlete's name, image, or likeness is
confidential and excepted from required public disclosure in
accordance with Chapter 552, Government Code. An institution to
which this section applies may withhold information described by
this subsection without requesting a decision from the attorney
general under Subchapter G, Chapter 552, Government Code.
(m) An institution to which this section applies or
third-party entity acting on the institution's behalf, or employee
of the institution or third-party entity:
(1) may identify, create, facilitate, or otherwise
assist with opportunities for a currently enrolled student athlete
to earn compensation from a third party for the use of the student
athlete's name, image, or likeness; and
(2) may not, in assisting a student athlete as
described by Subdivision (1):
(A) act as an athlete agent for the student
athlete;
(B) be compensated by the student athlete or
third party for providing the assistance;
(C) attempt to influence the student athlete's
choice of professional representation in connection with an
opportunity; or
(D) attempt to diminish the student athlete's
opportunities from competing third parties.
(n) A charitable organization exempt from taxation under
Section 501(a), Internal Revenue Code of 1986, as an organization
described by Section 501(c)(3) of that code, may compensate a
student athlete for the use of the student athlete's name, image, or
likeness.
(o) An activity of a third-party entity that compensates a
student athlete for the use of the student athlete's name, image, or
likeness may not be construed as an act on behalf of an institution
to which this section applies, provided that:
(1) the entity is a separate legal entity from the
institution; and
(2) the institution does not own or control the
entity.
(p) This section may not be construed as creating a cause of
action against an institution or an institution's officers or
employees relating to a student athlete's name, image, or likeness.
SECTION 2. (a) Except as provided by Subsection (b) of this
section, the changes in law made by this Act apply only to a
contract for the use of a student athlete's name, image, or likeness
entered into on or after the effective date of this Act. A contract
for the use of a student athlete's name, image, or likeness entered
into before the effective date of this Act is governed by the law as
it existed immediately before the effective date of this Act, and
that law is continued in effect for that purpose.
(b) Section 51.9246(l), Education Code, as added by this
Act, applies only to a request for information received on or after
the effective date of this Act. A request for information received
before the effective date of this Act is governed by the law in
effect on the date the request was received, and the former law is
continued in effect for that purpose.
SECTION 3. This Act takes effect July 1, 2023, if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for effect on that
date, this Act takes effect September 1, 2023.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2804 was passed by the House on April
25, 2023, by the following vote: Yeas 146, Nays 0, 1 present, not
voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 2804 was passed by the Senate on May
17, 2023, by the following vote: Yeas 23, Nays 7, 1 present, not
voting.
______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor