The Fair to Play Act & What it Means for the NCAA

The Fair to Play Act & What it Means for the NCAA
Wed 2nd October 2019

The NCAA now has an official deadline to decide how it will respond and react to a new California law that the organisation believes is an existential threat to the current collegiate sports model.

On September 30, California Gov. Gavin Newsom signed the Fair Pay To Play Act, which opens the door for college athletes in that state to collect money from endorsement deals without fear of losing their NCAA eligibility or scholarships. The law, first proposed by Berkeley-based state Sen. Nancy Skinner, will go into effect in January 2023. That gives the NCAA and every other state in the U.S. a three-year window to figure out how they will respond. A lot is likely to change in that time. The law has spawned plenty of confusion and concern about the future of college sports. Here’s some basic background to get you up to speed on how we got here, and what might be coming next.

Who will be paying California’s college athletes?

Paychecks to athletes won’t be coming from the schools themselves — at least not any more than the athletes already receive. NCAA rules allow colleges to provide their student-athletes with tuition, room and board, a stipend to cover some basic costs for attending college and a long list other non-monetary benefits like free food and clothing.

Instead, the law creates an unrestricted market for others who want to use the athlete’s name, image or likeness. Money could come in the form of major brands like Nike or McDonald’s using the athletes in commercials. It could also come from small businesses like car dealerships putting an athlete on a local billboard or memorabilia shops paying an athlete to show up for an autograph session for fans. Athletes could also make money themselves by monetising social media feeds, selling T-shirts online or advertising to give lessons in their sport to younger kids. The new law allows athletes to hire an agent to help manage the process.

Is California the only state with this new law?

For now, California is on its own. Several other states have discussed similar proposals and some of them anticipate starting the legislative process to make their own laws in the coming months. Lawmakers in Colorado, Florida, Maryland, Nevada, New York, North Carolina, South Carolina, Pennsylvania, Minnesota and Washington state have all floated at least some kind of similar idea. There is also a proposal making its way through the U.S. House of Representatives that would have the same effect on a national level.

Some of the state proposals — like New York and South Carolina — are attempting to go beyond guaranteeing athletes’ their name, image and likeness rights and would require schools to set aside more money for their players. Florida is hoping to dramatically shorten the NCAA’s timeline to change. One Florida lawmaker said he hopes to have a new law in place by April 2020.

How does the NCAA feel about all this?

The NCAA and leaders from the conferences and universities that comprise its membership remain opposed to California’s new law. The organisation said the law is “creating confusion” among current and future student-athletes. The Pac-12 said it is afraid the law will have “very significant negative consequences” for athletes due to the unintended consequences of professionalising college sports. SEC commissioner Greg Sankey told Sports Illustrated he was concerned that individual states having different laws will make it hard to manage a nationwide group of colleges.

Sankey and the NCAA both acknowledged that some change is needed. The association and its members, though, want to be the ones to dictate what those changes are and when they take place.

What is the NCAA going to do about it?

The NCAA formed a working group in May to examine the possibility of updating the way it handles name, image and likeness rights. The group of university presidents, conference commissioners and athletic directors are planning to provide recommendations to the NCAA’s board of governors at the end of the October.

Ohio State athletic director Gene Smith, one of the co-chairs of the group, told reporters the day after California’s law was signed that it was “a complex issue” and he was worried about how the NCAA and schools would monitor “bad actors” in an open market.

NCAA President Mark Emmert asked California lawmakers to hold off on creating their law until the NCAA had a change to reviews it own rules. Skinner, the bill’s author, said the NCAA has had decades to change its rules and was in need of some legislative pressure to be forced to act.

Are California schools going to be kicked out of the NCAA?

If the NCAA doesn’t change its rules before 2023, there could be a standoff between California and the NCAA. The NCAA has said the law would prohibit schools in California from participating in NCAA events. The association also has argued that the new law is unconstitutional because it infringes on the NCAA’s right to conduct interstate business. Proponents of the law disagree and say that kicking California schools out of the NCAA would be a violation of federal antitrust laws. Those arguments would likely lead to lawsuits decided in court.

However, politicians and athletic directors in California both think it’s unlikely that the conflict will ever reach that point.

What about Title IX issues?

Among the Pac-12’s arguments against the Fair Pay To Play Act was a suggestion that the law will negatively impact female athletes more than male athletes. The conference isn’t alone in questioning how changing college athlete compensation could affect women’s sports, which generate less money than men’s sports.

Title IX is a federal law that prohibits colleges and universities from discriminating against any group on the basis of their sex. In the sports world, that means providing equal opportunities for female and male students to participate on college teams and receive equal benefits from the school for doing so. California’s new law provides the same opportunity for female athletes to collect endorsement money as it does for male athletes. Because the schools aren’t paying themselves, they don’t have to make sure the amount of money is equal, only that the opportunity is.

Some have argued that if money starts to flow to players directly instead of through the athletic department, there will be fewer dollars to support non-revenue teams. The fear is that schools will have to eliminate some of their teams to make ends meet if their budget shrinks significantly. However, Title IX would prevent schools from taking more opportunities away from their women than from their men.

Sen. Skinner, co-author Sen. Steven Bradford and Gov. Newsom all said they felt the law actually opens more doors for female athletes who can now promote themselves rather than relying on the schools, which typically spend most of their marketing budget on revenue sports like football and men’s basketball.

Who is Nancy Skinner and why does she care about paying college athletes?

Skinner is a state senator representing a district that includes Berkeley — the home of the Cal Golden Bears. While a graduate student at Cal, Skinner was part of an effort to organize graduate assistant teachers to ask for better benefits. She also attended lectures led by Dr. Harry Edwards, an outspoken advocate for black athletes who has long considered the NCAA’s amateur rules a method of exploitation.

Skinner says she sees her bill as a way to correct a civil rights issue and unfair labor practices that affect all college athletes regardless of their race. Skinner co-wrote the bill with Bradford and with the help of several economists and activists who have been working on this issue for nearly 20 years.

Per Dan Murphy, ESPN.com

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