Virginia NIL Law for NCAA

Both House Bill 7001 and Senate Bill 223 contribute to Virginia’s Name, Likeness, and Image (NIL) landscape. On August 10th, 2021, Virginia Governor Terry McAuliffe signed House Bill 7001 allowing intercollegiate student-athletes to earn compensation for the use of their NIL effective immediately. The following year on February 1, 2022, Senate Bill 223 was added as supplemental NIL legislation to expand on the regulations set forth in HB 7001. SB 223 established a more comprehensive NIL framework while also empowering institutions to aid student-athletes in navigating NIL opportunities.

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Bill
Status

Signed Into Law

Effective
Date

08/10/2021

NCAA
Institutions

Estimated
NCAA Athletes

11,100

High School
NIL Legislation

Yes

Last Updated 08/22/22

Virginia NIL Law

Senate Bill 223:

Be it enacted by the General Assembly of Virginia:

1. That §54.1-526 of the Code of Virginia is amended and reenacted and that the Code of Virginia is amended by adding a section numbered 23.1-408.1 as follows:

§23.1-408.1. Intercollegiate athletics; student-athletes; compensation and representation for name, image, or likeness.

A. As used in this section:

“Athlete agent” means an individual who holds a valid certificate of registration as an athlete agent issued pursuant to Chapter 5.2 (§54.1-526 et seq.) of Title 54.1.

“Attorney” means an attorney licensed to practice law in the Commonwealth.

“Compensation” means any type of remuneration or anything of value. “Compensation” does not include any (i) scholarship provided to a student-athlete that covers some or all of the cost of attendance at an institution at which the student-athlete is enrolled or (ii) benefit a student-athlete may receive in accordance with the rules of the relevant athletic association or conference.

“Institution” means a private institution of higher education, associate-degree-granting public institution of higher education, or baccalaureate public institution of higher education.

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

B. No institution or agent thereof, athletic association, athletic conference, or other organization with authority over intercollegiate athletics shall:

1. 1. Prohibit or prevent a student-athlete from earning compensation for the use of his name, image, or likeness, except as otherwise permitted in this section;
  2. Prohibit or prevent a student-athlete from obtaining professional representation by an athlete agent or legal representation by an attorney in connection with issues related to name, image, or likeness;
  3. Declare a student-athlete ineligible for intercollegiate athletic competition because he earns compensation for the use of his name, image, or likeness or obtains professional representation by an athlete agent or attorney in connection with issues related to name, image, or likeness; or
  4. Reduce, cancel, revoke, or not renew an athletic scholarship because a student-athlete earns compensation for the use of his name, image, or likeness or obtains professional representation by an athlete agent or attorney in connection with issues related to name, image, or likeness.

C. No athletic association, athletic conference, or other organization with authority over intercollegiate athletics shall prohibit or prevent an institution from becoming a member of the association, conference, or organization or participating in intercollegiate athletics sponsored by such association, conference, or organization as a consequence of any student-athlete earning compensation for the use of his name, image, or likeness or obtaining representation by an athlete agent or attorney in connection with issues related to name, image, or likeness.

D. No student-athlete shall earn compensation for the use of his name, image, or likeness in connection with any of the following:

1. 1. Alcohol and alcoholic beverages;
  2. Adult entertainment;
  3. Cannabis, cannabinoids, cannabidiol, or other derivatives, not including hemp or hemp products;
  4. Controlled substances, as defined in §54.1-3401;
  5. Performance enhancing drugs or substances such as steroids or human growth hormone;
  6. Drug paraphernalia, as defined in §18.2-265.1;
  7. Tobacco, tobacco products, alternative nicotine products, nicotine vapor products, and similar products and devices;
  8. Weapons, including firearms and ammunition for firearms; and
  9. Casinos or gambling, including sports betting.

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

F. No student-athlete shall use an institution’s facilities; apparel; equipment; uniforms; or intellectual property, including logos, indicia, registered and unregistered trademarks, and products protected by copyright, for any opportunity to earn compensation for the use of his name, image, or likeness, unless otherwise permitted by the institution.

G. Prior to executing an agreement concerning the use of his name, image, or likeness, a student-athlete shall disclose such agreement to the institution at which he is enrolled in a manner designated by the institution. 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.

H. An institution may prohibit a student-athlete from using his name, image, or likeness to earn compensation if the proposed use conflicts with an existing institutional agreement.

I. No institution shall, except as otherwise permitted in this section, enter into, renew, or modify any agreement that prohibits a student-athlete from using his name, image, or likeness to earn compensation while the student-athlete is engaged in non-academic, unofficial team, or non-athletic department activities.

J. Nothing in this section shall be construed to impact the employment status of a student-athlete. No student-athlete shall be considered an employee of an institution based on participation in intercollegiate athletics.

K. Any student-athlete who is aggrieved by any action of an institution or agent thereof, athletic association, athletic conference, or other organization with authority over intercollegiate athletics in violation of any provision of this section may bring an action for injunctive relief.

§54.1-526. Definitions.

As used in this chapter, unless the context requires a different meaning:

“Agency contract” means an agreement in which a student-athlete authorizes a person to negotiate or solicit on behalf of the student-athlete a professional sports services contract or endorsement contract.

“Athlete agent” means an individual, whether or not registered under this chapter, who (i) directly or indirectly recruits or solicits a student-athlete to enter into an agency contract or, for compensation, procures employment or offers, promises, attempts, or negotiates to obtain employment for a student-athlete as a professional athlete or member of a professional sports team or organization; (ii) for compensation or in anticipation of compensation related to a student-athlete’s participation in athletics (a) serves the student-athlete in an advisory capacity on a matter related to finances, business pursuits, or career management decisions, unless the individual is an employee of an educational institution acting exclusively as an employee of the institution for the benefit of the institution, or (b) manages the business affairs of the student-athlete by providing assistance with bills, payments, contracts, or taxes; (iii) in anticipation of representing a student-athlete for a purpose related to the student-athlete’s participation in athletics (a) gives consideration to the student-athlete or another person, (b) serves the student-athlete in an advisory capacity on a matter related to finances, business pursuits, or career management decisions, or (c) manages the business affairs of the student-athlete by providing assistance with bills, payments, contracts, or taxes; or (iv) represents a student-athlete in connection with issues related to name, image, or likeness, including negotiating, securing, obtaining, arranging, and managing name, image, or likeness opportunities. “Athlete agent” does not include an individual who (a) acts solely on behalf of a professional sports team or organization or (b) is a licensed, registered, or certified professional and offers or provides services to a student-athlete customarily provided by members of the profession, unless the individual (1) also recruits or solicits the student-athlete to enter into an agency contract, (2) also, for compensation, procures employment or offers, promises, attempts, or negotiates to obtain employment for the student-athlete as a professional athlete or member of a professional sports team or organization, or (3) receives consideration for providing the services calculated using a different method than for an individual who is not a student-athlete.

“Athletic director” means the individual responsible for administering the overall athletic program of an educational institution or, if an educational institution has separately administered athletic programs for male students and female students, the athletic program for males or the athletic program for females, as appropriate.

“Director” means the Director of the Department of Professional and Occupational Regulation.

“Educational institution” means a public or private (i) elementary school, (ii) secondary school, (iii) technical or vocational school, (iv) community college, or (v) institution of higher education.

“Endorsement contract” means an agreement under which a student-athlete is employed or receives consideration to use on behalf of the other party any value that the student-athlete may have because of publicity, reputation, following, or fame obtained because of athletic ability or performance.

“Enrolled” or “enrolls” means registered for courses and attending athletic practice or class.

“Intercollegiate sport” means a sport played at the collegiate level for which eligibility requirements for participation by a student-athlete are established by a national association that promotes or regulates collegiate athletics.

“Interscholastic sport” means a sport played between educational institutions that are not community colleges or institutions of higher education.

“Licensed, registered, or certified professional” means an individual, other than an athlete agent, who is licensed, registered, or certified as an attorney, dealer in securities, financial planner, insurance agent, real estate broker or sales agent, tax consultant, accountant, or member of a profession by the Commonwealth or a nationally recognized organization that licenses, registers, or certifies members of the profession on the basis of experience, education, or testing.

“Person” means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality or other legal entity.

“Professional sports services contract” means an agreement under which an individual is employed as a professional athlete or agrees to render services as a player on a professional sports team or with a professional sports organization.

“Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

“Recruit or solicit” means an attempt to influence the choice of an athlete agent by a student-athlete or, if the student-athlete is a minor, a parent or guardian of the student-athlete. “Recruit or solicit” does not include giving advice on the selection of a particular agent in a family, coaching, or social situation unless the individual giving the advice does so because of the receipt or anticipated receipt of an economic benefit, directly or indirectly, from the agent.

“Registration” means registration as an athlete agent.

“Sign” means, with present intent to authenticate or adopt a record, (i) to execute or adopt a tangible symbol or (ii) to attach to or logically associate with the record an electronic symbol, sound, or process.

“State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

“Student-athlete” means an individual who is eligible to attend an educational institution and engages in, is eligible to engage in, or may be eligible in the future to engage in any interscholastic or intercollegiate sport. “Student-athlete” does not include, for a particular interscholastic or intercollegiate sport, an individual permanently ineligible to participate in that sport.

House Bill 7001 – Section 18:

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.

Tax Implications

FAQ’s

Virginia NIL FAQ’s

What is the Virginia NIL Law?

The Virginia NIL Law is a provision that was added into a budget proposal by the Governor to allow Virginia student athletes to earn compensation from the use of their name, image, or likeness.

When does Virginia NIL Compliance Start?

Virginia NIL started on July 1, 2021, per the NCAA Interim Policies and with the passage of House Bill 7001, Virginia State NIL laws took effect on August 10, 2021.

How does Virginia NIL affect NCAA Student-Athletes?

Virginia NCAA Student-Athletes will be able to earn compensation for the use of her or his Name, Image, or Likeness (NIL) through a multitude of different opportunities. Student-Athletes can now make money for things such as endorsements, sponsorships, appearances, autographs, memorabilia, podcasts, camps, clinics, private lessons, crowdfunding, and many other opportunities!

What are Virginia Name, Image, and Likeness Best Practices?

Both athletes and administrators in the State of Virginia should start by making sure they have a proper understanding of the rules and regulations set-forth by House Bill 7001. A working-knowledge of the ‘Dos and Don’ts’ for Virginia NIL will allow all parties to safely and successfully navigate the new landscape. The next most important aspect would be the compliance component of NIL. Not only do students need to make sure they are entering agreements that are compliant with the passed state regulations, but they need to make sure they are transparent with their school to avoid any institutional conflicts.

Colleges / Institutions

NCAA Virginia Schools

What schools are affected by Virginia NIL?

All institutions with NCAA athletic programs are affected by NIL. In the state of Virginia, the following schools will be affected:

George Mason University
Hampton University
James Madison University
Liberty University
Longwood University
Norfolk State University
Old Dominion University
Radford University
University of Richmond
Virginia Commonwealth University
University of Virginia
Virginia Military Institute
Virginia Polytechnic Institute and State University
College of William & Mary

Emory and Henry College
Virginia State University
Virginia Union University
University of Virginia’s College at Wise

Averett University
Bridgewater College
Christopher Newport University
Eastern Mennonite University
Ferrum College
Hampden–Sydney College
Hollins University
University of Lynchburg
Mary Baldwin University
University of Mary Washington
Marymount University
Randolph College
Randolph–Macon College
Roanoke College
Shenandoah University
Southern Virginia University
Sweet Briar College
Virginia Wesleyan University
Washington and Lee University

NAIA

Bluefield College

NJCAA

Bryant & Stratton College
Patrick & Henry Community College
Paul D. Camp Community College
Richard Bland College

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How does Virginia NIL affect NCAA Student-Athletes?

What are Virginia Name, Image, and Likeness Best Practices?

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What schools are affected by Virginia NIL?

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