Senate Bill No. 456–Committee on Human
Resources and Facilities

 

(On Behalf of the Secretary of State)

 

March 24, 2003

____________

 

Referred to Committee on Human Resources and Facilities

 

SUMMARY—Revises various provisions of Uniform Athletes’ Agents Act. (BDR 34‑153)

 

FISCAL NOTE:  Effect on Local Government: Yes.

                   Effect on the State: Yes.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to the Uniform Athletes’ Agents Act; revising various provisions of the Act; authorizing the Secretary of State to conduct certain investigations, issue certain orders and impose certain sanctions; authorizing the Secretary of State to recover the costs of certain proceedings; providing for the confidentiality of certain information and documents; authorizing the Secretary of State to adopt certain regulations; providing penalties for the violation of certain provisions, regulations and orders; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. Chapter 398 of NRS is hereby amended by adding

1-2  thereto the provisions set forth as sections 2 to 6, inclusive, of this

1-3  act.

1-4  Sec. 2.  1.  The Secretary of State may, within or outside this

1-5  state:

1-6  (a) Investigate any violation of:

1-7       (1) A provision of NRS 398.400 to 398.496, inclusive, and

1-8  sections 2 to 6, inclusive, of this act;

2-1       (2) A regulation adopted by the Secretary of State pursuant

2-2  to NRS 398.400 to 398.496, inclusive, and sections 2 to 6,

2-3  inclusive, of this act; or

2-4       (3) An order denying, suspending or revoking the

2-5  effectiveness of a registration, or an order to cease and desist,

2-6  issued by the Secretary of State pursuant to NRS 398.400 to

2-7  398.496, inclusive, and sections 2 to 6, inclusive, of this act.

2-8  (b) Conduct such other investigations as he finds necessary to

2-9  aid in the enforcement of NRS 398.400 to 398.496, inclusive, and

2-10  sections 2 to 6, inclusive, of this act, and any regulation or order

2-11  adopted or issued by the Secretary of State pursuant thereto.

2-12      2.  If the Secretary of State determines that a violation

2-13  specified in paragraph (a) of subsection 1 has occurred, the

2-14  Attorney General may prosecute the violation at the request of the

2-15  Secretary of State.

2-16      3.  If the Attorney General declines to prosecute such a

2-17  violation, the district attorney of the appropriate county may

2-18  prosecute the violation at the request of the Secretary of State.

2-19      Sec. 3.  1.  If the Secretary of State reasonably believes,

2-20  whether or not based upon an investigation conducted pursuant to

2-21  section 2 of this act, that a person has violated, or is about to

2-22  violate, any provision of NRS 398.400 to 398.496, inclusive, and

2-23  sections 2 to 6, inclusive, of this act, or any regulation or order of

2-24  the Secretary of State adopted or issued pursuant to NRS 398.400

2-25  to 398.496, inclusive, and sections 2 to 6, inclusive, of this act, the

2-26  Secretary of State, in addition to any specific power granted by

2-27  NRS 398.400 to 398.496, inclusive, and sections 2 to 6, inclusive,

2-28  of this act, may, without a prior hearing, issue a summary order

2-29  against the person, directing him to cease and desist from any

2-30  further acts that constitute or would constitute such a violation

2-31  until he is in compliance with NRS 398.400 to 398.496, inclusive,

2-32  and sections 2 to 6, inclusive, of this act. The summary order to

2-33  cease and desist must specify the section of NRS 398.400 to

2-34  398.496, inclusive, and sections 2 to 6, inclusive, of this act, or the

2-35  regulation or order of the Secretary of State adopted or issued

2-36  pursuant to NRS 398.400 to 398.496, inclusive, and sections 2 to 6,

2-37  inclusive, of this act, which the Secretary of State reasonably

2-38  believes has been or is about to be violated.

2-39      2.  If the Secretary of State reasonably believes, whether or

2-40  not based upon an investigation conducted pursuant to section 2

2-41  of this act, that a person has violated any provision of NRS

2-42  398.400 to 398.496, inclusive, and sections 2 to 6, inclusive, of this

2-43  act, or any regulation or order of the Secretary of State adopted or

2-44  issued pursuant to NRS 398.400 to 398.496, inclusive, and

2-45  sections 2 to 6, inclusive, of this act, the Secretary of State, in

3-1  addition to any specific power granted by NRS 398.400 to 398.496,

3-2  inclusive, and sections 2 to 6, inclusive, of this act, after giving

3-3  notice by registered or certified mail and conducting a hearing in

3-4  an administrative proceeding, unless the right to notice and

3-5  hearing is waived by the person against whom the sanction is

3-6  imposed, may:

3-7  (a) Issue an order against the person to cease and desist;

3-8  (b) Censure the person if he is a registered athlete’s agent;

3-9  (c) Suspend, revoke or refuse to renew the registration of the

3-10  person as an athlete’s agent; or

3-11      (d) If it is determined that the violation was willful, issue an

3-12  order against the person imposing an administrative fine of not

3-13  more than $25,000.

3-14      3.  If the person to whom notice is given pursuant to

3-15  subsection 2 does not request a hearing within 45 days after

3-16  receipt of the notice, he waives his right to a hearing and the

3-17  Secretary of State shall issue a permanent order. If the person

3-18  requests a hearing, the Secretary of State shall set the matter for

3-19  hearing not less than 15 or more than 60 days after he receives the

3-20  request for a hearing. The Secretary of State shall promptly notify

3-21  the parties by registered or certified mail of the time and place set

3-22  for the hearing.

3-23      4.  The imposition of the sanctions provided in this section is

3-24  limited as follows:

3-25      (a) If the Secretary of State revokes the registration of an

3-26  athlete’s agent, the imposition of that sanction precludes the

3-27  imposition of an administrative fine pursuant to subsection 2; and

3-28      (b) The imposition by the Secretary of State of one or more

3-29  sanctions pursuant to subsection 2 with respect to a specific

3-30  violation precludes him from later imposing any other sanction

3-31  pursuant to subsection 2 with respect to that violation.

3-32      5.  For the purpose of determining any sanction to be imposed

3-33  pursuant to subsection 2, the Secretary of State shall consider,

3-34  among other factors, how recently the conduct occurred, the

3-35  nature of the conduct and the context in which it occurred, and

3-36  any other relevant conduct of the applicant.

3-37      6.  If a sanction is imposed pursuant to this section, the

3-38  Secretary of State may recover the costs of the proceeding,

3-39  including, without limitation, investigative costs and attorney’s

3-40  fees, from the person against whom the sanction is imposed.

3-41      Sec. 4.  1.  For the purposes of an investigation or

3-42  proceeding pursuant to NRS 398.400 to 398.496, inclusive, and

3-43  sections 2 to 6, inclusive, of this act, the Secretary of State or any

3-44  officer or employee designated by the Secretary of State by

3-45  regulation, order or written direction may conduct hearings,

4-1  administer oaths and affirmations, render findings of fact and

4-2  conclusions of law, subpoena witnesses and compel their

4-3  attendance, take evidence and require the production, by subpoena

4-4  or otherwise, of books, papers, correspondence, memoranda,

4-5  agreements or other documents or records which the Secretary of

4-6  State or his designated officer or employee determines to be

4-7  relevant or material to the investigation or proceeding. A person

4-8  whom the Secretary of State or his designated officer or employee

4-9  does not consider to be the subject of an investigation is entitled to

4-10  reimbursement at the rate of 25 cents per page for copies of

4-11  documents which he is required by subpoena to produce. The

4-12  Secretary of State or his designated officer or employee may

4-13  require or permit a person to file a statement, under oath or

4-14  otherwise as the Secretary of State or his designated officer or

4-15  employee determines, as to the facts and circumstances

4-16  concerning the matter to be investigated.

4-17      2.  If the activities constituting an alleged violation for which

4-18  the information is sought would be a violation of NRS 398.400 to

4-19  398.496, inclusive, and sections 2 to 6, inclusive, of this act, had

4-20  the activities occurred in this state, the Secretary of State may

4-21  issue and apply to enforce subpoenas in this state at the request of

4-22  an agency or Secretary of State of another state.

4-23      3.  If a person does not testify or produce the documents

4-24  required by the Secretary of State or a designated officer or

4-25  employee pursuant to subpoena, the Secretary of State or

4-26  designated officer or employee may apply to the court for an order

4-27  compelling compliance. A request for an order of compliance may

4-28  be addressed to:

4-29      (a) The district court in and for the county where service may

4-30  be obtained on the person refusing to testify or produce the

4-31  documents, if the person is subject to service of process in this

4-32  state; or

4-33      (b) A court of another state having jurisdiction over the person

4-34  refusing to testify or produce the documents, if the person is not

4-35  subject to service of process in this state.

4-36      Sec. 5.  1.  Except as otherwise provided in subsections 2

4-37  and 3, the following information and documents do not constitute

4-38  public information and are confidential:

4-39      (a) Information or documents obtained by the Secretary of

4-40  State in connection with an investigation conducted pursuant to

4-41  section 2 of this act concerning possible violations of NRS 398.400

4-42  to 398.496, inclusive, and sections 2 to 6, inclusive, of this act; and

4-43      (b) Information or documents filed with the Secretary of State

4-44  in connection with an application for registration filed pursuant to

4-45  NRS 398.400 to 398.496, inclusive, and sections 2 to 6, inclusive,

5-1  of this act, which constitute commercial or financial information,

5-2  or business practices, of a person for which that person is entitled

5-3  to and has asserted a claim of privilege or confidentiality

5-4  authorized by law.

5-5  2.  The Secretary of State may submit any information or

5-6  evidence obtained in connection with an investigation conducted

5-7  pursuant to section 2 of this act to the Attorney General or

5-8  appropriate district attorney for the purpose of prosecuting a

5-9  criminal action pursuant to NRS 398.400 to 398.496, inclusive,

5-10  and sections 2 to 6, inclusive, of this act.

5-11      3.  The Secretary of State may disclose any information

5-12  obtained in connection with an investigation conducted pursuant

5-13  to section 2 of this act to any other governmental agency if the

5-14  disclosure is provided for the purpose of a civil, administrative or

5-15  criminal investigation or proceeding and the receiving agency

5-16  represents in writing that, under applicable law, protections exist

5-17  to preserve the integrity, confidentiality and security of the

5-18  information.

5-19      4.  The provisions of NRS 398.400 to 398.496, inclusive, and

5-20  sections 2 to 6, inclusive, of this act, do not create any privilege

5-21  and do not diminish any privilege existing pursuant to common

5-22  law, a specific statute or regulation, or otherwise.

5-23      Sec. 6.  1.  The provisions of NRS 398.400 to 398.496,

5-24  inclusive, and sections 2 to 6, inclusive, of this act, apply to a

5-25  person who sells or offers to sell his services as an athlete’s agent

5-26  if:

5-27      (a) The offer is made in this state; or

5-28      (b) The offer is accepted in this state.

5-29      2.  For the purpose of this section, an offer is made in this

5-30  state, whether or not either party is present in this state, if the

5-31  offer:

5-32      (a) Originates in this state; or

5-33      (b) Is directed by the offeror to a destination in this state and

5-34  received where it is directed, or at a post office in this state if the

5-35  offer is mailed.

5-36      3.  For the purpose of this section, an offer is accepted in this

5-37  state if the acceptance:

5-38      (a) Is communicated to the offeror in this state; and

5-39      (b) Has not previously been communicated to the offeror,

5-40  orally or in writing, outside this state.

5-41  Acceptance is communicated to the offeror in this state, whether

5-42  or not either party is present in this state, if the offeree directs it to

5-43  the offeror in this state reasonably believing the offeror to be in

5-44  this state and it is received where it is directed, or at any post office

5-45  in this state if the acceptance is mailed.

6-1  Sec. 7.  NRS 398.400 is hereby amended to read as follows:

6-2  398.400  The provisions of NRS 398.400 to 398.496, inclusive,

6-3  and sections 2 to 6, inclusive, of this act, may be cited as the

6-4  Uniform Athletes’ Agents Act.

6-5  Sec. 8.  NRS 398.404 is hereby amended to read as follows:

6-6  398.404  As used in NRS 398.400 to 398.496, inclusive, and

6-7  sections 2 to 6, inclusive, of this act, unless the context otherwise

6-8  requires, the words and terms defined in NRS 398.408 to 398.446,

6-9  inclusive, have the meanings ascribed to them in those sections.

6-10      Sec. 9.  NRS 398.440 is hereby amended to read as follows:

6-11      398.440  “Registration” means registration as an athlete’s agent

6-12  pursuant to [this chapter.] NRS 398.400 to 398.496, inclusive, and

6-13  sections 2 to 6, inclusive, of this act.

6-14      Sec. 10.  NRS 398.472 is hereby amended to read as follows:

6-15      398.472  1.  The Secretary of State shall adopt regulations

6-16  establishing fees for:

6-17      (a) An initial application for registration;

6-18      (b) An application for registration based upon a certificate of

6-19  registration or licensure issued by another state;

6-20      (c) An application for renewal of registration; and

6-21      (d) An application for renewal of registration based upon an

6-22  application for renewal of registration or licensure submitted in

6-23  another state.

6-24      2.  The fees established pursuant to subsection 1 must be

6-25  sufficient to cover the costs of administration of the Uniform

6-26  Athletes’ Agents Act.

6-27      3.  The Secretary of State may adopt:

6-28      (a) Regulations further defining such words and terms as are

6-29  necessary for an understanding of the provisions of NRS 398.400

6-30  to 398.496, inclusive, and sections 2 to 6, inclusive, of this act, and

6-31  any regulations adopted pursuant thereto; and

6-32      (b) Such other regulations as he determines necessary to carry

6-33  out the provisions of NRS 398.400 to 398.496, inclusive, and

6-34  sections 2 to 6, inclusive, of this act.

6-35      Sec. 11.  NRS 398.480 is hereby amended to read as follows:

6-36      398.480  1.  An athlete’s agent shall retain the following

6-37  records for 5 years:

6-38      (a) The name and address of each natural person he represents;

6-39      (b) Any contract of agency into which he enters; and

6-40      (c) Any direct cost he incurs in recruiting or soliciting a student

6-41  athlete to enter into a contract of agency.

6-42      2.  Records required by this section to be retained [are] :

6-43      (a) Are open to inspection by the Secretary of State during

6-44  normal business hours[.] ; and

7-1  (b) May be maintained in any form of data storage if they are

7-2  readily accessible to the Secretary of State.

7-3  3.  If the information contained in a document filed with the

7-4  Secretary of State as part of an application for registration is or

7-5  becomes inaccurate or incomplete, the registered person shall file

7-6  correcting information within 30 days.

7-7  Sec. 12.  NRS 398.496 is hereby amended to read as follows:

7-8  398.496  1.  An athlete’s agent shall not, with the intent to

7-9  induce a student athlete to enter into any contract:

7-10      (a) Give any materially false or misleading information or make

7-11  a materially false promise or representation;

7-12      (b) Furnish anything of value to the student athlete before the

7-13  student athlete enters into the contract; or

7-14      (c) Furnish anything of value to a natural person other than the

7-15  student athlete or another registered athlete’s agent.

7-16      2.  An athlete’s agent shall not intentionally:

7-17      (a) Initiate communication, direct or indirect, with a student

7-18  athlete to recruit or solicit him to enter into a contract of agency,

7-19  unless the agent is registered pursuant to [this chapter;] NRS

7-20  398.400 to 398.496, inclusive, and sections 2 to 6, inclusive, of this

7-21  act;

7-22      (b) Refuse or fail to retain or permit inspection of records

7-23  required to be retained pursuant to NRS 398.480;

7-24      (c) Fail to register when required pursuant to NRS 398.448;

7-25      (d) Include materially false or misleading information in an

7-26  application for registration or renewal of registration;

7-27      (e) Predate or postdate a contract of agency; or

7-28      (f) Fail to notify a student athlete, before he signs or otherwise

7-29  authenticates a contract of agency for a particular sport, that the

7-30  signing or authentication will make him ineligible to participate as a

7-31  student athlete in that sport.

7-32      3.  [An athlete’s agent who violates this section is guilty of a

7-33  gross misdemeanor.

7-34      4.  The Secretary of State may impose an administrative fine of

7-35  not more than $25,000 upon an athlete’s agent for a violation of the

7-36  Uniform Athletes’ Agents Act.] A person who willfully violates:

7-37      (a) A provision of NRS 398.400 to 398.496, inclusive, and

7-38  sections 2 to 6, inclusive, of this act;

7-39      (b) A regulation adopted by the Secretary of State pursuant to

7-40  NRS 398.400 to 398.496, inclusive, and sections 2 to 6, inclusive,

7-41  of this act; or

7-42      (c) An order denying, suspending or revoking the effectiveness

7-43  of a registration, or an order to cease and desist, issued by the

7-44  Secretary of State pursuant to NRS 398.400 to 398.496, inclusive,

7-45  and sections 2 to 6, inclusive, of this act,

8-1  is guilty of a gross misdemeanor and shall be punished by

8-2  imprisonment in the county jail for not more than 1 year, or by a

8-3  fine of not more than $25,000, or by both fine and imprisonment.

8-4  In addition to any other penalty, the court shall order the person

8-5  to pay restitution.

8-6  4.  A person who violates:

8-7  (a) A regulation adopted by the Secretary of State pursuant to

8-8  NRS 398.400 to 398.496, inclusive, and sections 2 to 6, inclusive,

8-9  of this act; or

8-10      (b) An order denying, suspending or revoking the effectiveness

8-11  of a registration, or an order to cease and desist, issued by the

8-12  Secretary of State pursuant to NRS 398.400 to 398.496, inclusive,

8-13  and sections 2 to 6, inclusive, of this act,

8-14  without knowledge of the regulation or order, is guilty of a

8-15  misdemeanor and shall be punished by a fine of not more than

8-16  $25,000.

8-17      5.  The provisions of NRS 398.400 to 398.496, inclusive, and

8-18  sections 2 to 6, inclusive, of this act, do not limit the power of the

8-19  State of Nevada to punish a person for conduct which constitutes

8-20  a crime pursuant to any other law.

 

8-21  H