The Fair Pay to Play Act Has Been Signed. Now the NCAA Must Address a Question to Which It’s Never Had a Good Answer.
California’s new bill presents a unique legal threat to an organization that’s long clung to an outdated model of amateurism. It also exposes the flaws in each argument made by those desperate to prevent this from starting a movement.
California Governor Gavin Newsom signed a bill that could hasten the end of the college sports amateurism model. SB 206, more commonly known as the Fair Pay to Play Act, was unanimously passed by the state’s assembly (73-0, with six no votes recorded) and senate (39-0, with one no vote recorded) in mid-September. Newsom announced Monday that he signed it into law on The Shop, LeBron James’s television show, a precedent I would like to be upheld in all future signings of state legislation:
The bill’s premise is straightforward. Beginning in January 2023, it is set to give student-athletes at colleges and universities in California the right to negotiate deals with third parties over the commercial use of their names, images, and likenesses (NIL). The NCAA has previously faced lawsuits over the usage of names, images, and likenesses, most notably in the O’Bannon v. NCAA case that prompted the organization to stop licensing EA Sports’ college-sports video game series. Yet this bill comes at the NCAA from the state level, using a legislative tactic the association hasn’t yet encountered.
While opponents of SB 206 have been fervent in exclaiming how the bill will lead to the decay of college sports (and, gasp, all of society!) as we know it, it’s actually more limited in scope than previous attempts to blow up the NCAA’s amateurism model. The bill isn’t seeking to designate student-athletes as employees or force colleges and universities to pay them via salaries or a trust. It isn’t trying to reconfigure the much-debated value of an athletic scholarship. It is merely set to bar institutions from stripping any athlete’s scholarship or eligibility over getting paid to sign autographs, appear in commercials, endorse products, and the like. It’s aiming to adopt what’s been referred to as “the Olympic model.” If a similar bill were passed on a national scale, EA Sports could pay athletes to use their likenesses in college-sports video games, as the company has wanted to since 2014. The NCAA has argued that fans only wanted to play as generic college teams; five years of fans obsessively updating rosters to keep them current stand as pretty strong evidence that fans care about the players too.
This is a major domino in the ongoing battle to secure fair compensation for college athletes—and it could prove successful largely because of its limited scope. The biggest hurdle in the fight to do away with college sports amateurism is that the boiler-plate argument against it has always sounded reasonable. I don’t see why schools should have to pay their players, says the man hosting the talk radio show, the man calling into the radio show, your mom, the friend-of-a-friend who attended your tailgate, and Mark Emmert, the NCAA president who gets paid more than $2 million annually to parrot this idea. Don’t they already get scholarships?
I could spend a few paragraphs laying out why I believe student-athletes deserve more: the gargantuan sums of money their performances generate for schools in a billion-dollar industry; the way the NCAA has struck deals with the NBA and NFL that effectively force athletes into amateur ball even if they’re ready for the pros; the lack of accountability colleges face to pay for long-term injury treatment for athletes who are injured on scholarship; the skyrocketing salaries of coaches and athletic directors; and the lie of telling athletes that a degree will provide future financial security when they are often shepherded into the easiest, least useful classes so they can retain their eligibility. But to many, the mountains of evidence that athletes aren’t getting a fair shake cannot defeat the sheer simplicity of the counter: Don’t they already get scholarships? Americans sacrifice so much to pay for college that it’s hard to sell people on the notion that student-athletes are stuck with the short end of the stick by only receiving a scholarship.
In the debate over NIL rights, however, the situation is flipped. Even if you see the play-for-scholarship exchange as fair, it still requires extensive and hypocritical mental gymnastics to contend that the NCAA should be able to prevent its athletes from partaking in other fair exchanges. This money wouldn’t even come from the schools—we’re talking about outside parties paying players for additional services off the field. Any other college student with a few thousand Instagram followers can get paid for posting a picture with a product; why can’t a student-athlete sell a song or monetize his popular YouTube channel just because he’s an athlete?
The NCAA has never had a particularly good answer for this, because its motivation for outlawing players from profiting off their names, images, and likenesses has always been cynical. While the schools that make up the NCAA would technically have nothing to lose from an athlete appearing in an outside ad—the advertiser, after all, would pay in such a scenario—the association fears a slippery slope. If individual advertisers determine that individual athletes have monetary value, the NCAA’s carefully crafted legal argument that fans watch college sports solely because of their attachment to universities would begin to crumble.
In that respect, the Fair Pay to Play Act’s argument against the NCAA’s amateurism model isn’t new. By making it in a creative and hyperfocused way, however, it poses a major threat to an organization that doesn’t seem to have to the logic to convincingly defend itself.
I’ve heard three primary arguments as to why student-athletes shouldn’t be able to collect money off their names, images, and likenesses. The first is that it would tip the competitive balance of major college sports, especially football and men’s basketball, in favor of deep-pocketed schools whose boosters would shell out colossal piles of cash for prized athletes to sign autographs or appear in ads. For one thing, this isn’t the government’s problem. I believe the government has a legitimate interest in ensuring that its citizens’ rights aren’t trampled by multibillion-dollar corporations, such as the NCAA. I don’t believe the government has a comparable interest in ensuring that two college sports programs have an equal shot at landing a five-star recruit. And for another, college sports don’t offer an even playing field as it is. Even if we ignore the reality that bag men are already giving large sums of money to recruits, the ability for students to appear in commercials is not going to be the thing that pushes Clemson over the hump in its football games against Wake Forest. (I do, however, want to watch Trevor Lawrence do shampoo ads. He’d be a natural.)
The second argument is that this bill would undermine Title IX, because men’s football and women’s volleyball players, for example, would likely bring in disproportionate levels of pay via endorsement deals. This also doesn’t hold water. Since the money wouldn’t come from the schools, the colleges and universities wouldn’t be funding men’s and women’s athletics differently than they are now, meaning that Title IX would be unaffected.
The third argument—the one preferred and pushed by Emmert—is that very few athletes would benefit from the ability to market themselves. Even if this is true, why should the NCAA oppose a rule that would be good for a few people and bad for nobody? (I guess it would go against the NCAA’s typical strategy of having rules that help a few people and hurt a lot of people.)
If the NCAA had a coherent argument for opposing this bill, it would have made it consistently. Instead, the organization’s response to SB 206 has rapidly changed. When the bill was passed by California’s senate, the NCAA wrote a letter to Governor Newsom claiming that it would “erase the critical distinction between college and professional athletics,” and lead to the state’s schools becoming exempt from participating in NCAA events. The letter, signed by Emmert, 17 university presidents, a former White House chief of staff, and, for some reason, Grant Hill, said that the bill was “harmful and, we believe, unconstitutional.” (As we all know, the Fourth Amendment outlaws unreasonable search and seizure and also decrees that “all college sports teams should have the same chance to succeed.”) Ohio State athletic director Gene Smith added that his school would stop scheduling California institutions, since he saw no way in which they could remain in the NCAA with this law in place.
On Monday, the NCAA’s response to Newsom’s signing the bill was … discernibly more measured. The association released a statement that said the new law had caused “confusion”—exactly what type of confusion is left unspecified—and expressed concern that “a patchwork of different laws” across multiple states could potentially make its goal “unattainable.” The statement also said that “improvement needs to happen on a national level” and suggested that the organization could reconsider its own NIL rules to come up with versions that are “realistic in modern society.” In a little less than a month, the NCAA’s stance on the bill has morphed from claiming imminent doom and gloom to conceding that a national law would make more sense than individual ones in all 50 states. Perhaps this is intended to dissuade other state legislatures from following suit. I interpret it as a damn good argument for Congress to act on a bill that will likely drum up support from both sides of the aisle.
The rise of this California bill has exposed a few truths about the NCAA. The first is that we should always remember this organization has as much legal authority when it comes to rulemaking as a board game inventor. It’s illegal for an athlete to receive a huge payment from a booster in the same way it’s illegal for you to collect $1,000 in Monopoly money when passing go. Sure, the NCAA makes rules for how its member institutions should operate, and if you break those rules the NCAA could prevent your school from playing in a prestigious tournament or a bowl game. But it’s the government that actually makes and enacts laws. Sometimes this can get confusing, because the NCAA has previously tried to punish schools that break laws (like when it issued sanctions against Penn State for its officials’ failure to report the crimes of Jerry Sandusky) and because courts and federal agencies have previously decided to enforce NCAA laws (like the FBI’s attempt to crack down on corruption in college basketball). When a state government passes a law asserting jurisdiction over how college athletics works, though, the NCAA can do little else besides whine and hide.
The second is that even the NCAA knows its arguments are flimsy. This is an organization that generates roughly a billion dollars per year and will continue to do so as long as its extremely precarious legal standing holds. For this reason, the NCAA will scream, hiss, and claim that the world is on fire when it encounters any threat to its position. However, when pushed, it has to acknowledge that it was making a big fuss over nothing.
In and of itself, the California bill doesn’t change a lot. It will make college athletics more sensible in one state beginning four years from now. Yet it proves that the NCAA will treat even its least defensible stances as if Moses carried them down Sinai, when in reality the association’s rules were put in place by greedy bureaucrats for the purpose of hoarding ever-increasing stacks of cash. If the NCAA gives way on name, image, and likeness rights and college sports continue existing in roughly the same fashion that they always have, something else will be made clear: This is all just posturing. Treat the NCAA like a toddler with a paper cut, and remember that the sheer volume of complaints does not reflect the severity of its situation.