March 13, 2006
As of today, I can tell the world I am an athlete agent and no one can stop me from engaging in that occupation.
I might do a lousy job and incur damages and the attorney general may obtain an injunction against my violating CRS 23-16-101 to 108 which provides limitations on contracts entered into between the agent and the athlete, but my occupation is not regulated.
The reason why this is important is because the legislature's Legal Services has produced a memorandum at the request of Rep. Anne McGihon (D) on whether her HB 1336, the "Uniform Athlete Agents Act" has to go through the process of Sunrise review.
Sunrise review occurs when an unregulated occupation seeks regulation by the state. The memorandum (which is merely an opinion) claims that if there is regulation, such as by limiting the terms of a contract, the Sunrise review by the Dept. of Regulatory Agencies (DORA) is not required. Legal Services does state the "memorandums do not represent an official legal position of the General Assembly or the state of Colorado and do not bind the members of the General Assembly.
Here is what is NOT in the present athlete agent law. Is the agent "certified" ? No. Is the agent "registered"? No. Is the agent "licensed?" . No. Is the title "athlete agent" protected? No. Do I need to prove any type of education? No.
Suppose I am a sex offender (which I am not). Is the Commission on Higher Education required by law to do a background check? No. Do I need to prove any type of education? No.
How about my going to another state that DOES license or register athlete agents. Does the fact I "practiced" in Colorado give me reciprocity? No.
Outside of an action for damages and injunction, can I be given a letter of admonition for my violation? No. Can I be suspended? No. Can my "license" be revoked? No.
I am not regulated. My contracts are regulated. The reason for a Sunrise review is to determine whether occupation regulation is needed, or whether the present statute , which does not regulate my occupation, is sufficient.
I was chief sponsor of the Sunrise law in 1985, and while my intent may well not be considered as legislative intent, the reason for the Sunrise law is clear to me from the legislative declaration. We wanted information on the least amount of regulation necessary for public health and safety:
"The general assembly hereby finds that establishing a system for reviewing the necessity of regulating an occupation or profession prior to enacting laws for such regulation will better enable it to evaluate the need for the regulation and to determine the least restricting regulatory alternative consistent with the public interest."
The Sunrise review is intended for information that would not be supplied by lobbyists or even known to supportive sponsors. The decision reached by the review does not impinge upon the right of the legislators to ignore the recommendations.
If the legislature follows the Legal Services memorandum, it affects the deceptive trade practices act, CRS 6-1-707. That law grants title protection to dieticians, occupational therapists, and opticians who obtain their titles from national organizations. They will not need to bother with Sunrise applications in the future. There were previous Sunrise reviews that determined occupational licensing was not needed for public protection for those occupations.
Statutory requirements for mortuaries do not include licensing of funeral directors, but are based on safety requirements concerning procedures relating to the deceased . Does the Legal Services memorandum mean that a bill to require licensing need not comply with sunrise requirements? Rep. Debbie Stafford (R) has introduced HB 1348 requiring a mortuary science practitioner to be licensed, without going through the required Sunrise review.
There is another bill by Rep. McGihon relating to debt management, HB 1280. While the purpose of the bill is positive, eleven pages of the bill are devoted to regulation by registration of debt management under supervision of the attorney general's office.
We have a present law on debt management contracts, adopted in 1990. It provides "any person who, with respect to the extension of credit by others, represents that such person can or will... in return for the payment of money ... improve or attempt to improve a buyer's credit record..."
The "person" is not regulated. Any person can do it. Only the contract is regulated. The 1990 law did not go through a Sunrise process and neither did the regulation of contracts by athlete agents.
The first time there is a violation not connected to terms of the contract and it leads to revocation as athlete agent or debt manager or mortuary science practitioner (assuming those bills become law) there will be a plaintiff who will go to court claiming the regulation violated the Sunrise law. And he or she will win.
In the meantime "Come on in" states Legal Services "the water is fine".
(Jerry Kopel served 22 years in the Colorado House.)
Copyright 2015 Jerry Kopel & David Kopel