Stanford played USC last week. The NCAA has warned Gov. Gavin Newson of California against signing a bill that would let athletes control of the use of their likenesses.
For the foreseeable future, California’s most anticipated athletics showdown probably won’t be on the gridiron, the court, or the diamond: It will be in the courtroom.
Awaiting the signature of Gavin Newsom, the state’s governor, is a bill that would prevent colleges in California from prohibiting their players from being compensated for the use by others, such as advertisers, of their names, images, or likenesses.
If Governor Newsom were to sign the bill, it would seriously challenge the National Collegiate Athletic Association, which forbids such compensation under its definition of amateurism. On Wednesday the association sent a letter cautioning Newsom against approving the bill, which would make the Fair Pay to Play Act a law. The letter, which was signed by all members of the organization’s Board of Directors, called the California legislation “unconstitutional” and said “it would erase the critical distinction between college and professional athletics.”
Newsom now has 30 days to sign or veto the bill. A spokesman for the governor declined to comment on his intentions, but Newsom has shown support for student-athletes in the past.
If the bill becomes law, expect litigation to follow. Lawsuits are nothing new for the NCAA, which has long fought athletes’ claims that they have a right to some of the millions in revenue they help bring in. But the entry of California — the country’s richest and most populous state — into the debate suggests real change could be coming to college sports’ amateurism distinction, though perhaps not as extensively as state legislators envision.
“I think the NCAA will make some effort to avoid litigation, but I don’t think the NCAA will ever cave and do what the California law says to do,” said Gary R. Roberts, president of Bradley University and a sports-law expert. “If the governor signs it, then it becomes a ticking clock.”
The NCAA could also punish or disqualify California colleges. It has already threatened to ban them from competing in NCAA championships, in a letter sent to two State Assembly representatives in June. Were that to happen, the colleges would have grounds to file their own federal antitrust suit, so some experts believe the ban to be an empty threat.
The timeline of any potential litigation on the NCAA’s end is murky at best. The California bill wouldn’t go into effect until the start of 2023, meaning the NCAA would have 40 months to reach some sort of compromise before suing. The group has already commissioned a committee to study athletes’ compensation for the use of their names, images, and licensing rights, and that committee is scheduled to release its first report in October.
According to federal interstate-commerce law, states cannot define rules that govern nationwide issues, and the imbalance across states would present an even bigger issue for the NCAA, because the essence of the organization is that all colleges are on a level playing field.
For change to occur within the NCAA’s definition of amateurism and the constraints around it, either the NCAA must craft the modification or Congress must change the federal law, according to Matthew Mitten, a law professor at Marquette University and executive director of the National Sports Law Institute. At least the latter possibility has potential. The Student-Athlete Equity Act, a bipartisan bill introduced in the U.S. House of Representatives this year, now rests with the House Committee on Ways and Means. If passed, the measure would amend the federal tax code to prevent amateur-sports organizations from “restricting the use of an athlete’s name, image, or likeness.”
But Michael McCann, director of the Sports and Entertainment Law Institute at the University of New Hampshire, believes the NCAA won’t wait for the federal bill to work its way through Congress. “I think they see the tea leaves,” he said. “I think the NCAA has to come out with some vigor to oppose what would be a pretty substantial change to their model of amateurism.”
A court case from 1992 could signal a likely outcome for the forthcoming legal battle between California and the NCAA, said Bradley University’s Roberts. In NCAA v. Miller, the NCAA had investigated the University of Nevada at Las Vegas men’s basketball program and scheduled a hearing, which members of the team refused to acknowledge, instead demanding that the NCAA conduct its investigation in accordance with a recently enacted Nevada statute. Ultimately, the U.S. District Court for the District of Nevada found the state’s statute in violation of the commerce clause of the U.S. Constitution.
The Miller case falls in a long line of court decisions that show deference to the NCAA, said Gabe Feldman, director of Tulane University’s sports-law program. That expectation of deference has lessened since 2014, when the O’Bannon v. NCAA decision found the NCAA in violation of federal antitrust law. (O’Bannon also set the standard that any athletics compensation must be “tethered to education,” which could create yet another sticking point in any litigation over California’s measure.)
Despite the challenges facing the California bill, the NCAA’s constraints around amateurism are “more likely to get some change than ever before,” Feldman added.
If the bill is signed and change does arrive in 2023, it might not involve athletes’ cutting deals directly with companies. Andy Schwarz, a sports economist, said a best-case scenario might see athletes’ negotiating contracts that give their names, images, and license rights to their university in return for a lump sum, royalties, or any other incentives-laden deal. In that scenario, the colleges would not need to worry about the athletes’ sponsoring unsavory products, and the athletes would make money off their images while controlling the terms of the deal.
But Schwarz said he thinks that’s unlikely, given the NCAA’s track record of response. “They have this sort of cut-off-their-nose-to-spite-their-face attitude, which is if we have to share it with the athletes, we’d rather lose it,” Schwarz said. “What I think the NCAA is going to do in the very short run is, they’re going to put out a proposal that they hope people are fooled into thinking is granting athletes their NIL [name, image, likness] rights when in fact it’s a Scooby Snack, like ‘here’s crumb of what your rights should be, now shut up.’”
But to continue responding in that style could risk even more, said Exavier B. Pope, a sports-law expert. “I think the NCAA is in danger of losing the Power Five conferences,” Pope said, envisioning a world in which the competition for top talent becomes so intense that the biggest conferences disaffiliate from the NCAA in order to create their own rules.
Even if the down-the-road consequences of litigation could be huge, the immediate implications of the California legislation probably won’t change things for many athletes. After all, not all student-athletes actually have desirable names, images, or likenesses.
“Even at a program like Alabama, what is the third-string right tackle’s value for name and image rights?” Marsh asked. “If that’s even true at Alabama, think about how inapplicable this whole concept is at so many schools.”
Wesley Jenkins is an editorial intern at The Chronicle. Follow him on Twitter @_wesjenks, or email him at wjenkins@chronicle.com.