Mark D. Maloney, Jr.
Loyola University Chicago School of Law, JD 2020
In February, California State Senators Nancy Skinner and Steven Bradford presented SB-206, titled the Fair Pay to Play Act, to the California State Senate. Founded on the principle of amateurism, which prohibits paying participants, the NCAA has never allowed intercollegiate student-athletes to earn any form of compensation. This bill seeks to end that prohibition in California and provide student-athletes the rights to their names, images, or likenesses (NIL). In May, the State Senate voted in favor of the bill, 31-5. After the necessary committees reviewed and amended the bill, the State Assembly unanimously passed the Fair Pay to Play Act in a 72-0 vote. Due to the changes, the amended bill went back to the State Senate, where it was unanimously approved, 39-0, on September 11. Governor Gavin Newsom has 30 days to sign, veto, or take no action and allow the bill to become law.
Between the lines
SB-206 is a proposed amendment to California’s Education Code which requires athletic departments to comply with the stated requirements relating to student-athlete rights. This amendment applies to athletic departments generating over $10 million in media rights for intercollegiate athletics at 4-year private universities, University of California campuses, and the California State University schools.
The Fair Pay to Play Act provides California student-athletes with the unprecedented right to profit off their NILs, a commonplace right in almost every other industry. Schools and other groups with authority, such as athletic associations or conferences, cannot prevent student-athletes from earning compensation from their NILs. The NCAA and its member conferences are barred from banning California schools’ participation in intercollegiate athletics due to NIL compensation.
Because student-athletes are students first, their scholarships are protected from revocation or reduction due to the money earned from their NIL or because they hired an agent. The bill specifies that athletes can’t enter into contracts in exchange for compensation that conflict with their team’s contracts. The team can’t enter into contracts that limit or prevent a student-athlete from monetizing their NIL, when the student-athlete is not engaged in official team activities.
What exactly is the NCAA fighting against?
The NCAA continues to fight to retain its oppressive control over college students with exceptional athletic ability and will not stop until every avenue is exhausted and every penny spent. The NCAA Board of Governors wrote a letter to Gov. Newsom in anticipation that the State Senate would pass the amended version of the bill on the concurrent vote. In the letter, the Board of Governors strongly urged Gov. Newsom to not allow the bill to become law, maintaining the same arguments that it would blur the lines between college and professional sports, give California schools an unfair advantage, and that those schools would be unable to participate in NCAA competitions. The NCAA went even further this time and called the bill “unconstitutional.”
The organization, again, falsely insists and asserts, without any foundation, that the consequences of allowing student-athlete compensation would be more detrimental than beneficial to the over 24,000 student-athletes in California, across the three divisions. If the NCAA cared enough to read the bill, they would have seen that the bill would only affect a handful or two of Division I schools. Instead, Mark Emmert and company choose to make an outrageous generalization. It is with great curiosity if the NCAA truly believes they are protecting the student-athletes of its member institutions or if they just care about keeping control and money without regard for the student-athletes.
What would Tthe impact be on college athletics?
If Gov. Newsom signs the bill or allows it to become law, it would not go into effect until January 1, 2023, which provides ample time to comply with the law. The bill could prove to be obsolete if the NCAA does the right thing for once and amends its by-laws—but don’t hold your breath. It seems as though the NCAA will do whatever it takes and pay any and all costs to try and prevent student-athletes from making a dime.
The Fair Pay to Play Act is common sense for the rest of the world, but an absolute nightmare for the NCAA. They are stuck between a rock and a hard place. Expel some of the most notable brands in college sports or enter the 21st century and relinquish their outlandish stance against student-athlete compensation. Student-athletes are the only students on campuses across the country that are barred from using their talents to make money.
The impact has already been felt. State legislators in Washington, Colorado, South Carolina, and New York have proposed similar legislation that would allow student-athlete compensation. Prominent professional athletes and former college stars have taken positions on both sides of the argument. Some of the most well-known college coaches have addressed the bill. A survey of 100 basketball coaches, from elite and smaller programs, including head coaches and assistant coaches, 77 percent supported an Olympic-style model of NIL compensation for student-athletes.
The NCAA says that allowing student-athletes to make money off their own NIL would be unfair for the rest of its member institutions. When a school in a Power 5 Conference builds multi-million-dollar state-of-the-art athletic facilities, it’s not unfair to the smaller schools. It’s only unfair if the money goes to the student-athletes instead of going to the school for a new athletic facility.
Whether or not the bill becomes law, and hopefully it does, California legislators have thrown the first punch in what is set up to be a back-and-forth duel against the NCAA to do what is right: allowing student-athletes to be compensated for their hard work.