In 2009, former UCLA basketball player Ed O’Bannon was joined by other former college football and basketball players from across the country in filing a class-action lawsuit against the NCAA over the use of their names and images. The NCAA has licensed the likenesses of current and former players for apparel, TV ads, and video games. Until the lawsuit, those students saw not one dime from any of it. As part of their eligibility, universities and the NCAA required student athletes to forgo their identity rights in perpetuity. The exact language handed to teenagers and their parents to sign states the athlete’s likeness will be forfeited “forever and throughout the universe.”
This is a situation where these same student athletes stated there were times where they were concerned about having enough food to eat because of NCAA rules, while their universities were making money off merchandise with their names on it in the campus bookstores.
In response, Gov. Gavin Newsom has signed California Senate Bill 206 into law. Starting in 2023, the “Fair Pay to Play Act” will forbid California universities from preventing student athletes’ ability to sign endorsement deals, market their name and likeness, and hire agents to represent their interests. The NCAA is stating they need more time to “evolve” and “modernize” their rules, while calling California’s decision an “existential threat” to their amateur sports system, and may result in California universities being barred from bowl games, playoffs, and other major events. Gov. Newsom, who played baseball while a student at Santa Clara University, has called the NCAA’s system “bankrupt.”
The NCAA’s official position is that student athletes “are not employees, but students.” And the response of many to questions about this sort of thing is to argue college athletes are already “compensated” with a scholarship, education, and college degree, with the purity of amateur athletics and an institution’s primary mission of education necessitating restrictions on money and goods within the system. However, a 2011 study found more than 80% of college players on a “full scholarship” were living below the poverty line, and if revenue was shared in a similar worker-employer manner as to how it’s done in the NFL or NBA, each Division I player would be making six figures or more each year. Northwestern University fought the unionization of its football team and designation of student athletes as “workers” under the National Labor Relations Act—defined as “an individual who performs services for another, under the control of another, for compensation or payment”—in order to avoid some of the uncomfortable conversations which come when discussing what fair compensation entails.
Under California’s Senate Bill 206, authored by state Sen. Nancy Skinner of Berkeley, universities are prohibited from directly paying athletes, but those athletes will be allowed to pursue their options with third parties.
From Alan Blinder at The New York Times:
“Every single student in the university can market their name, image and likeness; they can go and get a YouTube channel, and they can monetize that,” Newsom said in an interview with The New York Times. “The only group that can’t are athletes. Why is that?” The measure, he said, was “a big move to expose the farce and to challenge a system that is outsized in its capacity to push back.”
“People are just so aware of the fact that you’ve got a multibillion-dollar industry that, let’s set aside scholarships, basically denies compensation to the very talent, the very work that produces that revenue,” said Senator Nancy Skinner, a Democrat, who wrote the legislation. “Students who love their sport and are committed to continuing their sport in college are handicapped in so many ways, and it’s all due to N.C.A.A. rules.”
Sensing the severity of the legislative threats from California, a handful of other states and Congress, the N.C.A.A. announced in May that it had convened a committee to consider changes — a tactic that supporters of the existing model hoped would buy time and stave off legislative action. The group’s recommendations are expected in October, but California officials, skeptical that the N.C.A.A. would adopt substantive reforms, chose to press ahead with their legislation without waiting.
Why would it be so bad for a “student athlete” to be represented by an agent? If the team coach can make sponsorship deals, why shouldn’t a college player be able to go to Nike or Adidas himself and make a deal to wear a pair of shoes and appear in an ad?
Someone explain that me. The only reasoning I’ve heard is the mystique of amateur athletics, even if it doesn’t function that way or is ripe for corruption and exploitation. And that mystique requires the audience to believe these athletes are playing for the honor of Duke, the University of Alabama, or UCLA out of their love for their state and home, not the fact that it’s an extended tryout for the NFL and NBA.
In any other situation, having someone to look out for the interests of the individual is what is common. No one would begrudge someone with singing or acting talent from having an adviser on how best to go about monetizing their gifts. But when it comes to collegiate sports, it’s punished.
The NCAA and universities proceed from a “trust us” position in which they assert the amateur system is there as nurturer and protector of these students. But that’s a load of crap. There are decades of examples of this system exploiting students, creating dangerous situations which have led to the use of prostitution and resulted in gang rape, and seeming to always benefit administrators and coaches in a way that never “trickles down” to the people who actually play the games. The amateur system provides too many of these athletes a substandard education, exploits their time, and disposes of them when they are either no longer necessary or unable to perform in ways that were hoped.
From Dan Murphy at ESPN:
The NCAA, in response to Newsom's signing of the bill, said it would continue its effort to make "adjustments" to its rules "that are both realistic in modern society and tied to higher education … We will consider next steps in California while our members move forward with ongoing efforts to make adjustments to NCAA name, image and likeness rules that are both realistic in modern society and tied to higher education," the NCAA said in a statement. "As more states consider their own specific legislation related to this topic, it is clear that a patchwork of different laws from different states will make unattainable the goal of providing a fair and level playing field for 1,100 campuses and nearly half a million student-athletes nationwide."
Politicians in Florida, New York, Washington state, Colorado, Maryland, North Carolina and South Carolina have publicly supported the idea of creating similar laws in their states. Rep. Mark Walker, R-N.C., has proposed a change to federal tax code that would force the NCAA to choose between giving athletes the rights to their name, image and likeness or risk losing their tax-exempt nonprofit status. A representative from Walker's office said the California law has given added momentum to the proposal, which is currently in the House Committee on Ways and Means in the early stages of the legislative process.
Some athletic directors in California are concerned that the new law will actually put their schools at a recruiting disadvantage. If rules don't change nationally before 2023, the NCAA says California teams would be banned from taking part in NCAA competitions. San Diego State athletic director John David Wicker said he's concerned that no out-of-state schools will be willing to schedule games with his teams. Wicker said if forced to choose between abiding by the state's law and following NCAA rules, he would likely follow NCAA rules.
"We are the NCAA, and so if we have rules that dictate that you can't monetize your name, image, and likeness based on the sport, and those student-athletes do that, then they're going to be barred from competition until whatever is adjudicated," Wicker told ESPN in August. "...[T]he state of California doesn't regulate the NCAA in that sense." In other words, if California and the NCAA remain at odds in 2023, the Fair Pay To Play Act will likely lead to lawsuits that will require a judge to decide how it can be enforced. The NCAA contends the new law is unconstitutional because it violates rules that protect interstate commerce.