Certification and Regulation
Florida’s bill provides a level of certainty since it has already passed and will go into effect, unless preempted, July 1. Under Florida’s bill, student-athletes can be represented by an agent or attorney, but all attorneys must be a member in good standing of The Florida Bar, and all agents must be licensed in the state through the Department of Professional Regulation.
Agents then would still be under the jurisdiction of the Sports Agent Responsibility and Trust Act (“SPARTA”). The question of agent certification and regulation has been a ripe topic of federal proposals.
Proposals typically grant power to the Federal Trade Commission (“FTC”) or some other body to federally regulate agents. For example, Marco Rubio’s Fairness in Collegiate Athletics Act
gave the FTC power to enforce violations of SPARTA. Several other proposals have also given the FTC power: Reps. Anthony Gonzalez and Emanuel Cleaver’s Student Athlete Level Playing Field Act
chose the FTC to enforce endorsement contracts; Sen. Roger Wicker’s Athletes Compensation Rights Act
assigned the FTC to choose a private, non-profit group to oversee NIL legislation into the future; and Sen. Jerry Moran’s recent proposal assigned the FTC to work with the bill’s newly-established “Amateur Intercollegiate Athletics Corporation” (AIAC) to oversee agents who represent student-athletes and regulate other industry participants.
At least one scholar, Michael McCann, has questioned the validity of utilizing the FTC in this regulatory capacity, though, emphasizing the agency’s passivity in the area of agent regulation. McCann quotes a former deputy director of the FTC as saying he had “never heard of SPARTA” when he was at the FTC, and McCann found no warning letters or courts referring to SPARTA over a 15-year period.
Regardless of the eventual legislative model enacted, agents will likely be faced with a higher level of regulation and will need to ensure they are receiving the proper certifications (whether that be at the state or federal level) and following the proper procedures before signing student-athletes to endorsement contracts.