By DANNY MCCOOEY
After years of petitioning the NCAA for payment, collegiate student-athletes finally saw some progress in their favor over the past few months. On September 27th of this year, California passed SB 206 or the California Fair Pay to Play Act. The law, scheduled to be implemented in 2023, allows student-athletes to be compensated for the use of their name, image, or likeness.[i] In other words, when a student-athlete’s name is used in a video game or sells an autograph, he or she will receive monetary compensation.[ii] The law also provides other benefits for student-athletes including permitting them to hire agents before their graduation.[iii] Many people view the law as a positive step away from the unjust system of collegiate athletics in place now. With their talents, student-athletes in various sports propel billion-dollar industries that benefit their schools, their conferences, and the NCAA itself through the student-athletes’ unpaid labor. UCLA head football coach Chip Kelly said the law is, “the right thing to do.” He continued, “It doesn’t cost the universities, it doesn’t cost the NCAA.”[iv] This is because the student-athletes would be financially gaining only from the consumer’s purchases. This would seem like a logical solution that should have happened long ago, but the problem runs deeper. The NCAA pushes back on the ruling explaining that California does not foresee the problematic implications the bill could cause and they are threatening to punish the state, the schools, and the student-athletes with bans from NCAA competition. Although, the implications of the law are still uncertain and legal questions on all sides of the argument remain, one thing has been determined: the system today is broken and it is going to take cooperation on all sides to fix it.
If the NCAA and the California legislature continue to struggle to find common ground, the legality of the law will be questioned in court. Under the United States Constitution, California can argue that its state legislature has a right to enact the law. The Tenth Amendment proclaims, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[v] This guarantees the States the right to regulate sectors like education and sport – both fields that the California Fair Pay to Play Act encompasses. On the other hand, the NCAA believes that the law is unconstitutional and the organization plans to challenge it in court under the interstate commerce clause. The commerce clause is a line from Article I of the Constitution that empowers Congress to regulate commerce between states.[vi] The clause has been cited in the past to stretch federal power over states’ rights and the NCAA could try to use it in a similar manner.[vii] The California collegiate teams engage in interstate commerce. They generate revenue from playing schools all over the country, they spend money when they travel to opposing schools for competitions, and they receive funding from donors or sponsors who are not solely based in California. These facts allow the NCAA to make the argument that this law cannot be legally passed through a state legislature but only by the federal government.
Among the NCAA’s concerns is the fact that the law grants California schools an obvious recruiting advantage over the rest of the nation.[viii] Most of the country’s best student-athletes would desire to attend school in California if that was the only state that offered them a chance to make money. The NCAA has reacted by threatening the California schools with a ban from NCAA competition and millions of dollars in fines because of their violation of NCAA rules. This would be an enormous blow to the student-athletes and to the revenues of the universities and conferences they represent. The potential prohibition also brings up further questions like is it fair for the NCAA to punish the student-athletes, schools, and conferences at all if they are just complying with a state law?[ix] The California schools that do not support the law will still be forced to obey it and will thus suffer the impending NCAA punishments. Another apprehension of league officials is if the bill is moving to professionalize college sports, then how will this impact NCAA sports that do not attract hundreds of thousands to stadiums on Saturdays and generate billions of dollars of revenue?[x] [xi] The major revenue generating sports like football and basketball have absorbed so much of the attention of lawmakers and NCAA officials that it is easy to pass over how SB 206 will affect smaller men’s and women’s sports.[xii] There are varying opinions on this. Stanford women’s basketball coach Tara VanDerveer worries that “If it becomes an absolute free for all,” female student-athletes “are not going to be the winners in grabbing for cash.”[xiii] She believes that the money will be channeled to big programs like football and men’s basketball, while leaving her student-athletes out to dry. In contrast, California Senator Nancy Skinner, who co-wrote the bill, believes that given the lack of financial gain women can achieve in American professional sports, the act gives women student-athletes a chance to market themselves while in college.[xiv]
On October 29th the NCAA board recently voted to lessen the restrictions on student-athletes’ endorsement money. Although the vote was a step in the same direction as the California law, the result is still very arbitrary as it did not yet put in place any physical changes.[xv] The NCAA and the state of California are stuck in a game of chicken waiting for the other to back down first. The NCAA thinks that the schools will convince the state to cave back to original NCAA regulations so they do not lose the revenue a potential ban would yield. Meanwhile, California thinks the NCAA will respect their law based on the major media market the state maintains. SB 206 leaves open the possibility of amendment before it comes into action in 2023 but if compromise does not occur soon it may be the courts that settle the decision.
[i] California Senate Bill No. 206 § 1(b).
[ii] SB 206 does stipulate that an exception to this rule is that student-athletes cannot enter into contracts or make exclusive deals with a company that contradicts a current contract their program has. For example, a student-athlete could not sign with Reebok at Georgetown University because the school maintains a contract with Jordan Brand.
[iv] Bill Plaschke, Column: California’s College Sports Reform Bill Exposes Hypocrisy of NCAA’s Money Grab, LOS ANGELES TIMES (1 Oct. 2019) https://www.latimes.com/sports/story/2019-09-30/ncaa-reform-sb206-california-college-sports-money
[v] Content Team, Reserved Powers – Definition, Examples, Cases, LEGAL DICTIONARY (15 Feb. 2019) https://legaldictionary.net/reserved-powers/
[vi] The Editors of Encyclopaedia Britannica, Commerce Clause, ENCYCLOPÆDIA BRITANNICA (29 Apr. 2016) https://www.britannica.com/topic/commerce-clause
[viii] Alan Blinder, Paying College Athletes: Answers to Key Questions on New Law, THE NEW YORK TIMES (30 Sept. 2019) https://www.nytimes.com/2019/09/30/sports/should-college-athletes-be-paid.html
[xi] Chris Smith, College Football’s Most Valuable Teams: Reigning Champion Clemson Tigers Claw Into Top 25, FORBES (1 Dec. 2019) https://www.forbes.com/sites/chrissmith/2019/09/12/college-football-most-valuable-clemson-texas-am/#2014bdbca2e7
[xii] Elliott Almond, What Does the NCAA Board’s Vote on Paying Athletes Actually Mean?, THE MERCURY NEWS (30 Oct. 2019) https://www.chicagotribune.com/sns-tns-bc-fbc-bkc-almond-column-20191030-story.html