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Unofficial Opinion 2004-1

Unofficial Opinion 2004-1

March 15, 2004
To: 

Representative, District 130

Re: 

Legal entities and individuals who seek to obtain collegiate athletic scholarships for high school athletes do not fall under the provisions of O.C.G.A. § 20 2 317 and 20 2 318 or the 2003 amendments to Chapter 4A of Title 43.

You have requested advice on whether companies or individuals who seek to obtain athletic scholarships for high school athletes fall under the provisions of H.B. 95 and H.B. 194, which were passed during the 2003 session of the General Assembly and signed into law by the Governor. For the reasons discussed below, they do not.

Code sections 20 2 317 and 20 2 318, enacted at 2003 Ga. Laws 707, § 1 (H.B. 95), expressly apply to all legal entities and individuals, except immediate family members. 2003 Ga. Laws 707; see O.C.G.A. §§ 20 2 317(a)(1) (Supp. 2003) (definition of “immediate family member”); 20 2 317(a)(2) (definition of “person”); 20 2 317(c)(4) (Supp. 2003) (exclusion of immediate family members); 20 3 318(a) (identical definitions). Code section 20 2 317 (Supp. 2003) prevents any person, as defined above, from giving or offering anything of value to “induce, encourage or reward [a] student-athlete’s application, enrollment, or attendance” at a postsecondary school or to “induce, encourage, or reward [a] student athlete’s participation in an intercollegiate” event or program. O.C.G.A. § 20 2 317(b)(1) and (2) (Supp. 2003). A violation of its provisions is a misdemeanor of a high and aggravated nature. O.C.G.A. § 20 2 317(d) (Supp. 2003). Nonetheless, it excludes from its scope “[g]rants-in-aid or other full or partial scholarships awarded to a student-athlete or administered by an institution of postsecondary education.” O.C.G.A. § 20 2 317(c)(3) (Supp. 2003). Thus, it expressly withdraws from its ambit the subject of your question: scholarships for high school athletes. Cf. Slakman v. Continental Cas. Co., 277 Ga. 189, 191 (2003) (“fundamental rules of statutory construction . . . require [the courts] to construe a statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage”).

Similarly, O.C.G.A. § 20 2 318 (Supp. 2003) provides a right of action for damages, costs, attorneys fees, and injunctive relief for postsecondary schools against any person whose activity causes the school to be penalized, disqualified, or suspended by an athletic association or conference or due to self-imposed discipline. It does not address collegiate athletic scholarships for high school athletes, and would only apply to this situation if obtaining such a scholarship for a student athlete caused the school to be subject to sanction, a situation that appears unlikely. Similarly, H.B. 194 did not address attempts to obtain collegiate athletic scholarships for high school athletes. House Bill 194, enacted at 2003 Ga. Laws 774, made, among other things, extensive revisions to Chapter 4A of Title 43 of the Georgia Code, which regulates “athlete agents” and their contractual relations with student-athletes. As amended, “athlete agent” now only means individuals, other than certain family members, and, thus, appears to exclude from its definition corporations and other fictional entities. See H.B. 194, § 2 (substituting “an individual” for “a person”); compare O.C.G.A. § 43 4A 2(2) (Supp. 2003) (enacted at 2003 Ga. Laws 774, 775) with O.C.G.A. § 43 4A 2(3) (2002) (enacted at 1989 Ga. Laws 370, 372, § 1); see O.C.G.A. § 43 4A 2(8) (Supp. 2003) (definition of “person” includes fictional entities). “Athlete agent” is defined to mean someone who “recruits or solicits a student athlete to enter into an agency contract” or holds himself out to the public as an athlete agent. O.C.G.A. § 43 4A 2(2) (Supp. 2003). An “agency contract,” however, is one in which the agent will negotiate and solicit, for the student-athlete, a “professional sports services contract or an endorsement contract.” O.C.G.A. § 43 4A 2(1) (Supp. 2003). A collegiate athletic scholarship is not a professional sports services contract or an endorsement, and so an “agency contract” is not by definition one entered into to obtain a scholarship. Thus, the definitions within Chapter 4A of Title 43 make this chapter inapplicable to attempts to obtain scholarships for student athletes. Chapter 4A otherwise is silent on persons obtaining scholarships for student athletes. Nothing in the Chapter expressly prohibits this activity.1

Therefore, it is my unofficial opinion that legal entities and individuals who seek to obtain collegiate athletic scholarships for high school athletes do not fall under the provisions of O.C.G.A. §§ 20 2 317 and 20 2 318 or the 2003 amendments to Chapter 4A of Title 43.

Prepared by:

STEFAN RITTER
Senior Assistant Attorney General


1 There is one potential exception: where an athlete agent furnishes a scholarship to a student athlete prior to, and as an inducement for, entering into an agency contract. Current O.C.G.A. § 43 4A 14(a)(2) (Supp. 2003) prohibits athlete agents from “[f]urnish[ing] anything of value to a student athlete before the student athlete enters into the agency contract” as an inducement to enter into an agency contract. Merely obtaining a scholarship from an unrelated third party for the scholar athlete, however, likely does not qualify as “furnishing” by the agent, because in this situation the inducement did not come from the agent.