On March 20, 2020, Governor Jared S. Polis signed Colorado Senate Bill 20-123 into law permitting student-athletes enrolled in an institution of higher education in Colorado to be paid for the use of his/her name, image or likeness, to hire representatives to represent student-athletes’ interests, and declaring that a student-athlete may not be compelled to forfeit his/her rights in order to participate in intercollegiate athletics.  In pertinent part, the act provides as follows:

• An athletic association (e., conferences and the NCAA) shall not prevent a student-athlete from earning compensation from the use of the student-athlete’s name, image, or likeness; and
• An athletic association shall not prevent an institution from participating in intercollegiate athletes because a student-athlete receives compensation from the use of the student-athlete’s name, image, or likeness.

Neither the institution nor the athletic association are permitted to:

• Provide compensation to student-athletes;
• Provide remuneration to a prospective student-athlete based on his/her athletics ability or performance or potential performance; and
• Prevent a student-athlete from obtaining professional representation in relation to contracts or legal matters;

The act, however, requires student-athletes to comply with following:

• Shall not enter into a contract that conflicts with a team contract of the team for which he/she competes. The contract providing for any such conflict shall be disclosed to the student-athlete by the institution.  This provision does not prohibit a student-athlete from using his name, image, or likeness when he/she is not engaged in team activities;
• Any contract providing compensation to a student-athlete in exchange for use of his/her name, image, or likeness shall be disclosed to his/her athletic director within seventy-two (72) hours after the student-athlete enters into the contract; and
• Any person providing legal representation to a student-athlete must be a licensed attorney.

Any student-athlete who is aggrieved by an institution or athlete association is permitted to seek injunctive relief.

The law is not without awkwardness and confusing language.  As stated above, the law prohibits an institution or athletic association from preventing a student-athlete from using his/her name, image, or likeness for compensation.  However, another section of the law states “[e]xcept as may be required by the rules or requirements of an athletic association of which an institution is a member, an institution shall not uphold any rule, requirement, standard, or other limitation that prevents a student-athlete” from earning compensation for use of his/her name, image, or likeness.  Obviously, current NCAA legislation has “rules or requirements” prohibiting student-athletes from using his/her name, image, or likeness for compensation.

The legislation takes effect on January 1, 2023.

For any questions, feel free to contact Christian Dennie at cdennie@bgsfirm.com.