Photo Credit: The Sports World Begins To React To California’s Fair Pay To Play Act, Forbes (Sept. 30, 2019), https://www.forbes.com/sites/kristidosh/2019/09/30/the-sports-world-begins-to-react-to-californias-fair-pay-to-play-act/#787524d91e0e.
By: Cobb Bostick
Executive Editor, American Journal of Trial Advocacy
The landscape of college athletics could be on the verge of a major shift in policy. The debate over whether or not college athletes should be paid has been a popular topic of conversation through the years. The National Collegiate Athletic Association (“NCAA”) has been the primary governing body over the rules and regulations of college athletics since its inception in 1906 when it started as the Intercollegiate Athletic Association of the United States.[1] It later changed its name to the NCAA in 1910.[2]
One of the long-standing regulations of the NCAA is that the athletes must be amateurs, meaning they cannot receive compensation for their athletic performance.[3] The NCAA’s focus was that these athletes are “student-athletes” with the emphasis being on student.[4] Indeed, the NCAA and proponents of their policies consider this as what differentiates them from professional sports. Thus, from the beginning, to compete in collegiate athletics the athletes were required to maintain their amateur status.[5] However, the NCAA’s definition of amateurism has changed drastically over time.[6]
In fact, originally, eligibility to participate in college sports was restricted “to athletes who received no compensation whatsoever.”[7] In these early days when the NCAA could not successfully enforce its rules, the member universities continued to pay athletes.[8] Then in 1948, the NCAA introduced the “Sanity Code” which outlawed giving financial aid on the basis of athletic ability and created a way to enforce its rules against the member universities.[9] In 1956, the NCAA ditched the Sanity Code and for the first-time allowed universities to provide athletic scholarships based entirely on athletic ability.[10] However, this could only include “ the total cost of ‘tuition and fees, room and board, and required course-related books.’”[11] Finally, in 2014, the NCAA changed its policy to allow universities “to increase scholarships up to the full cost of attendance.”[12]
Aside from its policies on athletic scholarships, the NCAA has additional restrictions on a collegiate athlete’s ability to be compensated that include signing contracts with professional teams, entering professional drafts, and hiring agents.[13] All of these actions can, and usually do, result in the athlete losing their amateur status.[14] The NCAA has continued to adjust its definition of amateurism.[15] For example, it now allows Olympic athletes to collect money for winning metals, tennis players to receive prize money, football players to receive gifts from bowl games, and two sport athletes to receive payment as a professional in one sport while still being allowed to compete on the college level in another.[16] One commentator said it best, “[a]mateurism is whatever the NCAA says amateurism is at any particular moment.”[17] Another large area in which the NCAA restricts, and the main topic of this article, is an athlete’s ability to profit off of his own name, image, and likeness.[18]
The traditionalist view is that the value of a college education is payment for the athlete’s services. There is also the view that paying athletes goes against the amateurism values of college athletics. While these are somewhat reasonable views, the reality is that the NCAA is a multibillion-dollar operation whose product is the athletic abilities of young people. Additionally, “U.S. law generally prohibits misappropriating someone else’s identity for commercial profit.”[19] Therefore, why is it right for these institutions to be profiting so much off of the name, image, and likeness of college athletes while at the same time restricting these athletes from doing so themselves?
Legislators in California recognized this issue and developed a piece of legislation that would allow college athletes to receive payment for the use of their names, images and likenesses.[20] Moreover, the law was drafted to specifically forbid schools “from denying their athletes the chance to hire agents and earn compensation derived from the use of their names, images, and likenesses.”[21] However, it is important to note that:
The Fair Pay to Play Act should not be confused with other efforts to reform college sports. It would not convert college athletes into employees or allow them to unionize. It would not lift the grant-in-aid cap on the value of athletic scholarships or alter how the full cost of attendance is configured. It would not force colleges, conferences or the NCAA to pay college athletes in any new way. The Act, which is authored by California Senators Nancy Skinner and Steven Bradford, is about empowering college athletes to negotiate their own contracts with third parties over the commercial use of their names, images and likenesses. Think video game publishers. Or apparel companies. Or trading cards. Or autograph shows.[22]
This legislation did not come without push back from the NCAA as it released statements threatening to declare California schools ineligible[23] and stating that the Act is unconstitutional.[24] Even with these considerations in mind, California Governor Gavin Newsome signed the Fair Pay to Play Act into law on September 30, 2019. However, the Act will not take effect until January 1, 2023.[25]
This Act was only the beginning of the movement. Since it was passed, other states have initiated the process of creating similar legislation.[26] States that are known to have already begun work on such bills include: Colorado, Florida, Illinois, Kentucky, Minnesota, Nevada, New York, Pennsylvania, South Carolina, and Washington.[27] Other reports have the number of states developing similar legislation to be around twenty to twenty-five states.[28]
In response to the momentum that has developed following this legislation, the NCAA has now come out and said that it will allow college athletes to profit off their names, images, and likenesses with the caveat that it will take some time to implement safeguards and new rules that will ensure fairness.[29] They have asked that each of the three divisions under its control “create rules between now and January 2021.”[30] What is to come of this new age of college athletics is still very unclear, but what is clear is that the movement towards more rights for the athletes themselves has begun.
[1] Jeff Wallenfeldt, National Collegiate Athletic Association, Encyclopaedia Britannica, https://www.britannica.com/topic/National-Collegiate-Athletic-Association (last visited Nov. 14, 2019).
[2] Id.
[3] O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049, 1054 (9th Cir. 2015).
[4] Jon Solomon, The History Behind the Debate Over Paying NCAA Athletes, Aspen Inst. (Apr. 23, 2018), https://www.aspeninstitute.org/blog-posts/history-behind-debate-paying-ncaa-athletes/.
[5] O’Bannon, 802 F.3d at 1054.
[6] Patrick F. McDevitt, The NCAA’s Amateurism Rules Are Indeed Madness, HuffPost (Mar. 2, 2018, 5:47 AM), https://www.huffpost.com/entry/opinion-mcdevitt-ncaa-amateurism_n_5a987314e4b0479c0250a58d.
[7] O’Bannon, 802 F.3d at 1054.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id. at 1055.
[13] Id.
[14] Id.
[15] Solomon, supra note 4.
[16] Id.
[17] Id.
[18] O’Bannon, 802 F.3d at 1055.
[19] Michael McCann, What Will Happen if the California ‘Fair Pay to Play Act’ Gets Signed into Law?, Sports Illustrated (Sept. 10, 2019), https://www.si.com/college-football/2019/09/10/california-fair-pay-play-act-law-ncaa-pac-12.
[20] Alaa Abdeldaiem, California Governor Signs Fair Pay to Play Act, Sports Illustrated (Sept. 30, 2019), https://www.si.com/college-football/2019/09/30/california-governor-signs-fair-pay-play-act-lebron-james.
[21] McCann, supra note 19.
[22] Id.
[23] Steve Berkowitz, NCAA Says California Schools Could Be Banned from Championships if Bill Isn’t Dropped, USA Today, https://www.usatoday.com/story/sports/2019/06/24/ncaa-california-schools-could-banned-championships-over-bill/1542632001/ (last updated June 24, 2019, 8:56 AM).
[24] Michael Shapiro, NCAA Sends Letter to Calif. Governor, Calls Athlete Compensation Bill ‘Unconstitutional’, Sports Illustrated (Sept. 11, 2019), https://www.si.com/college-football/2019/09/11/ncaa-letter-california-governor-fair-pay-play-unconstitutional.
[25] Id.
[26] Matt Norlander, Fair Pay to Play Act: States Bucking NCAA to Let Athletes Be Paid for Name, Image, Likeness, CBS Sports (Oct. 3, 2019, 5:43 PM), https://www.cbssports.com/college-football/news/fair-pay-to-play-act-states-bucking-ncaa-to-let-athletes-be-paid-for-name-image-likeness/.
[27] Id.
[28] John Feinstein, The NCAA Is Still Whining about Pay to Play. It’s Too Late for That., Wash. Post (Oct. 16, 2019, 11:57 AM), https://www.washingtonpost.com/sports/colleges/the-ncaa-is-still-whining-about-pay-to-play-its-too-late-for-that/2019/10/16/d128a2c8-f01e-11e9-8693-f487e46784aa_story.html.
[29] Steve Almasy, Wayne Sterling & Angela Barajas, NCAA Says Athletes May Profit from Name, Image, and Likeness, CNN (Oct. 29, 2019, 5:19 PM), https://www.cnn.com/2019/10/29/us/ncaa-athletes-compensation/index.html.
[30] Id.
American Journal of Trial Advocacy 