Virginia has joined the ever-expanding number of states to introduce proposed legislation that would permit student-athletes to benefit from the marketing of their name, image and likeness. In fact, three individual bills have been introduced for consideration by the 2020 General Assembly, all of which would allow collegiate athletes to be compensated for the commercial use of their name, image, and likeness. These bills are Senate Bill 464 (Sen. Bryce Reeves – R), House Bill 300 (Del. Marcus Simon – D), and House Bill 811 (Del. Jason Miyares – R-82nd District). If passed, all of the proposed bills would be effective on July 1, 2024.

The Virginia legislative effort follows the lead of California’s name, image and likeness law, signed by California Governor Gavin Newsom on September 30, 2019 (effective date July 1, 2023). The California law made the Golden State the first to recognize the rights of student-athletes to market and profit from the use of their name, image and likeness and to hire agents to assist with the negotiating and signing endorsement deals without fear of reprisal from their university or the NCAA.

Similarly, each of Virginia’s three proposed bills prohibit universities, athletic associations, and athletic conferences from preventing student athletes from being paid for the commercial use of the name, image, and likeness (such as from their use in video games, jersey sales, and other memorabilia and merchandise). Each of the bills would also prohibit universities, athletic associations, and athletic conferences from preventing student-athletes from hiring agents or revoking scholarships based on an athlete’s profiting from their name, image, and likeness.

However, the three bills contain significant differences. For example,

House Bill 811, would amend the Code of Virginia by adding a section numbered 23.1-408.1 and its definition of “student athlete” would limit the benefits of name, image and likeness rights to only those who participate in Division I football at the Football Bowl Subdivision level.

The “football” limitation contained in the definition would deny other non-football student-athletes within the state from taking advantage of their individual marketing rights.

Unlike California’s law which gained initial support based upon its cost neutral basis to colleges and universities, Senate Bill 464 would not be limited Division I football players but it would create costs to each covered school. It would require that both private and public universities create an injury compensation fund from a percentage of the university’s athletics revenues for athletes that suffer career or season-ending injuries. Senate Bill 464 would also create a wage fund from a percentage of the university’s athletic revenues that would be distributed equally among each student athlete irrespective of his or her sport. The proposed language of the bill specifically requires each private institution of higher education and each baccalaureate public institution of higher education to establish:

  1. a sports injury compensation fund into which the institution shall deposit 7.5 percent of the revenue earned from its intercollegiate athletics programs and from which any student-athlete who suffers a serious or career-ending injury during a practice or competition may apply for compensation upon his graduation, and
  2. a wage fund into which the institution shall deposit 7.5 percent of the revenue earned from its intercollegiate athletics programs and from which each student-athlete shall receive an equal amount of compensation at the end of each academic year.

The university cost provisions contained in Senate Bill 464 are similar to those introduced by New York State Senator Kevin S. Parker in his bill, the New York Collegiate Athletic Participation Compensation Act. Here, Senator Parker’s legislation seeks to require the following:

  • Each college must establish a sports injury health savings account and a wage fund. These will be funded by each college and university with 15 percent of the revenue each school derives from ticket sales for its athletics programs’ events. Half of such revenue will be deposited into such sports injury health savings account and the other half will be deposited into such wage fund; and,
  • Each college’s sports injury health savings account will be established to provide a student-athlete who suffers a career-ending or serious injury during a game or practice with compensation upon his or her graduation; and,
  • At the conclusion of each school year, each college’s wage fund will be divided evenly and paid to all student-athletes attending such college.

For Virginia’s many universities and student-athletes (and future student-athletes), the variations among the three proposals will certainly create passionate dialogue and debate among Virginia’s state legislators and be something to watch closely in 2020.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor Virginia’s three proposed name, image and likeness legislative proposals as well as the many other pieces of similar pending state legislation and the potential introduction of federal legislation. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

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Photo of Gregg E. Clifton Gregg E. Clifton

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in…

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major League Baseball teams in their salary arbitration matters and has represented NCAA and NAIA collegiate clients regarding rules compliance, investigatory matters and in disciplinary hearings. In addition, he has handled Title IX investigations and compliance issues for NCAA and NAIA member institutions. Mr. Clifton has also worked extensively in the area of agent regulation and enforcement in professional and college sports and regularly provides counsel on issues relating to NCAA and NAIA amateurism issues and athlete eligibility questions. He has also served as an expert witness in matters involving sports agents’ work and responsibilities, as well as athlete compensation issues.

Prior to joining Jackson Lewis, he spent six years as Chief Operating Officer and Vice President of Team Sports for Gaylord Sports Management. He also served as President of the Athlete and Entertainment Division for famed sports attorney Bob Woolf’s firm, Woolf Associates, in Boston.

Mr. Clifton began his career as an Associate at Jackson Lewis where he focused his practice on traditional labor law. He continues to counsel clients in the areas of collective bargaining negotiations, representation cases, arbitrations and National Labor Relations Board matters.

Mr. Clifton frequently serves as an expert speaker to law schools, including Harvard University, Boston College, Hofstra University and Arizona State University, and bar associations regarding sports law issues, including agent regulation and salary arbitration. He is also often cited as an expert source in national news media for his commentary and opinion on legal issues in sports.