California Puts the Ball in the NCAA’s Court with the Fair Pay to Play Act

SAVANNAH PADGETT— On September 30th, California Governor Newsom signed the Fair Pay to Play Act that gives student-athletes the right to use their name, likeness, and image for profit. Starting in January of 2023, when the law goes into effect, student-athletes at California universities will be able to enter into contracts commercializing their identities. The new law does not require universities to pay their athletes; instead, it simply makes it unlawful for the schools to prevent athletes from profiting off of their identities and from hiring an agent to help them in that pursuit. The most substantial restriction imposed by the law is that athletes may not enter contracts that conflict with their university’s sponsorships. For example, a UCLA student-athlete would be restricted from signing a contract with Nike because it would clash with the University’s Under Armour partnership.

As expected, NCAA President Mark Emmert stands in opposition. In June, Emmert sent a letter to the California State Assembly requesting that the Committee on Arts, Entertainment, Sports, Tourism, and Internet Media and the Committee on Higher Education refrain from passing the bill to allow the NCAA to reformulate its current rules to achieve similar ends in accordance with its values. The NCAA rules currently provide that an athlete is a professional where she has “use[d] [her] athletics skill for pay in any form” or where she “[s]ign[s] a contract or verbally commit[s] with an agent”. New legislation, Emmert asserts, will undermine both amateurism and the uniformity that makes national championships possible.

While the new legislation is arguably a step in the right direction amidst the recent push to compensate student-athletes, Emmert is correct that it will create chaos. This is especially true because California isn’t alone in legislating to protect athletes’ eligibility to compete: Colorado, Florida, Illinois, Kentucky, Minnesota, Nevada, New York, Pennsylvania, and South Carolina have all drafted or proposed laws similar to or modeled after the Fair Pay to Play Act. Athletes with the greatest potential will likely gravitate to states that they consider to have the most suitable laws. The Fair Pay to Play Act, and other similar state legislation, has the power to create a new incentive for high school athletes selecting a university and, thus, add a new dynamic to recruiting.

The NCAA Board of Governors sent a letter to Governor Newsom, just weeks before the bill passed, threatening to disallow California schools from participating in NCAA competitions to address the fairness concerns stemming from the potential recruiting advantage and pointing out that the exclusion would be contrary to the interest of the thousands of student-athletes at California schools. While contrary to the interests of athletes at California schools, it would be equally unfair to allow California schools, that have a recruiting advantage, to compete against schools in states that don’t have a law similar to the Fair Pay to Play Act. Ohio State’s Athletic Director, Gene Smith, told ESPN that he would not schedule Ohio State to play in California or any other state that passes similar laws. Smith has been appointed by Emmert and the NCAA Board of Governors to a group charged with presenting a report to the Board of Governors, due this month, issuing guidance on name, image, and likeness issues.

These fairness concerns, however, may be best addressed through federal legislation: two Congressmen, and former student-athletes, Anthony Gonzalez and Mark Walker, are planning proposals. Gonzalez’s proposal would give athletes the opportunity to make money from endorsements and provide safeguards to protect athletes from being taken advantage of, a concern shared by Smith. Instead of moving forward without regard for the NCAA’s objectives, Gonzalez plans on waiting for the NCAA to make its recommendations this month before opening a dialogue to align their goals.

In MarchWalker introduced the Student Athlete Equity Act that would amend the tax code to give student-athletes the rights to their name, image, and likeness based on the idea that being an athlete should not preclude the opportunity to engage in the free market and profit from endorsements. The amendment would simply modify the tax code’s definition of Qualified Amateur Sports Organizations to exclude any organization that “restricts a student athlete from using, or being reasonably compensated for the third party use of, the name, image, or likeness of such student athlete.”

Even as college sports have evolved into a multibillion dollar industry, the NCAA has continued to cling to its traditional idea of amateurism. This position, that college sports are for the love of the game and that athletics comes second to education, is increasingly hard to justify where coaches are making seven-figure salaries and athletes are often precluded from taking their desired classes or even their first choice of major to accommodate their training schedules.

Giving athletes the right to use their name, image, and likeness poses a reasonable compromise for advocates of Pay for Play because it provides a mechanism for student-athletes to earn a profit without turning them into employees. Further, enabling athletes to commercialize their identities incentivizes good behavior, which would improve the reputations of universities and of sports. Nevertheless, states making unilateral decisions will certainly cause chaos, negatively affecting the athletes that the new legislation seeks to empower. This month, thanks to California, the NCAA will finally show its hand when guidance is presented to its Board of Governors. Should the NCAA respond by modifying its definition of amateurism to encompass athletes who profit from endorsements, college athletics will avoid the chaos because states’ legislating to address the issue would become unnecessary.