The Chicago Daily Law Bulletin Published Timothy Liam EPSTEIN'S Article Entitled, "California's new student-athlete act may set off national tsunami."

The NCAA is under pressure as multiple states have taken substantial steps to allow student-athletes to profit off their names, images and likenesses. In February, California state Sens. Nancy Skinner and Steven Bradford introduced SB206, which is better known as the Fair Pay to Play Act. On Monday, Gov. Gavin Newsome signed the bill. The act will become operative on Jan. 1, 2023, affecting both public and private California schools.

The NCAA, for its part, has vehemently opposed the act, and at the same time, has moved forward with prosecution of major recruiting scandals that have cast a shadow over major collegiate athletics for the last several years.

Both those who support and oppose the act believe these recruiting scandals justify their respective positions on the act. The act prohibits California universities and intercollegiate athletic associations and conferences from punishing and/or preventing student-athletes from earning compensation derived from the student’s name, image or likeness. Furthermore, it allows student-athletes to retain legal counsel and an agent to facilitate this process.

The act only protects student-athletes in negotiating and contracting with third-parties regarding commercial use of their name, image and likeness for compensation. It is not to be confused with efforts to require schools to pay their student-athletes directly.

Other states have taken notice of California’s efforts. South Carolina is expected to introduce a bill similar to the act, but also intends to include a proposal which would require schools to put money into a trust fund that student-athletes may collect after graduating.

New York state has also proposed a bill mirroring the act but goes one step further by requiring schools’ athletic departments to give 15% of annual revenue to student-athletes.

This movement has not gone unopposed, especially by the NCAA who will be most affected by this legislation. NCAA bylaw strictly prohibits student-athletes from using their names, images or likenesses for commercial purposes.

NCAA President Mark Emmert stated that such legislation is an “existential threat” to collegiate sports. The NCAA has strictly maintained the concept of amateurism, and thus, believes that college players must not monetize their names, images or likenesses in order to separate college athletics from professional sports.

At least ostensibly, the act is intended to compensate student-athletes, which proponents argue will curb some of the more nefarious aspects of recruiting. This is particularly salient in light of recent scandals, which the NCAA has recently begun to prosecute.

Most recently, the NCAA has issued a notice of allegations to the University of Kansas. Court testimony indicates that two Kansas players were bribed into committing to Kansas. One player’s mother was allegedly paid $90,000 by a former Adidas consultant and another player’s guardian was paid $2,500.

The NCAA has levied Level I violations against Kansas, including the serious “lack of institutional control.” Among other things, the NCAA justified the Level I violation by stating that the conduct provided substantial recruiting advantages and extensive benefits.

The testimony that provided the basis for the University of Kansas allegations came from the NCAA basketball corruption trial in 2018. Five NCAA basketball players were said to have been direct or indirect recipients of payments because they signed with specific Adidas-sponsored universities.

Money has not been the only method to induce recruits to sign with a specific school. From 2010 to 2014, then Louisville Director of Basketball Operations Andre McGee paid dancers and prostitutes to perform and have sex with Louisville basketball recruits.

The act states that its intention is to “avoid exploitation of student-athletes, colleges and universities.” Supporters contend that the act will not abolish amateurism in the NCAA because it is not their intention for student-athletes to make millions of dollars.

Furthermore, they argue that recruiting scandals would happen far less frequently if the student-athletes were able to commercialize their names, images and likenesses. The much-cited example of college athlete financial needs (with many in college athletics calling this untrue) is taken from before the NCAA authorized unlimited meals and snacks for Division I student-athletes, then University of Connecticut basketball player Shabazz Napier stated in an interview that his college basketball experience included multiple “hungry nights” where he could not afford to eat.

Supporters argue that if a student-athlete received fair compensation through their names, images and likenesses, financial issues student-athletes and their families experience could be alleviated, and thus, they would be less likely to be persuaded to engage in illegal recruiting.

Thus, supporters of the act believe that if one of the Kansas basketball players knew the NCAA would allow him to commercialize his name, image and likeness, a $2,500 bribe would likely have not been accepted because such compensation could be earned without jeopardizing his eligibility.

However, those in opposition contend that these recruiting scandals demonstrate what will happen if amateurism is lost in intercollegiate sports.

When addressing the act, Emmert expressed that only a few student-athletes will actually make significant money from the proposed legislation. Furthermore, those in opposition contend that the Fair Pay to Play Act will consequently lead schools to utilize a legal avenue to obtain a recruiting edge, and thus, collegiate sports will become “pay-to-win”.

The NCAA appears to be taking steps to determine a method that will allow student-athletes to commercialize their names, images and likenesses while also not violating the NCAA’s principal of amateurism. Before the bill was signed, Emmert asked California to delay its enactment until an NCAA working group studying athlete compensation provides its finding sometime this month.

However, proponents of the act have little trust in Emmert, specifically because he has fought against student-athlete compensation while he was compensated almost $4 million in 2018 for running the nonprofit organization. Given Gov. Newsome’s decision, it appears he joins the group that lacks faith in Emmert and the NCAA.

California has brought this issue to the forefront of sports. Both sides argue that their respective ideologies promote fairness.

Those in opposition contend that allowing commercial use of a student-athlete’s name, image or likeness will uproot the NCAA’s amateurism philosophy, which in turn, will create unfair competition that will ultimately end intercollegiate athletics as we know it.

However, those in support believe that the NCAA has exploited student-athletes. They do not believe that allowing student-athletes to receive fair compensation through their own names, images and likenesses will lead to such extreme greed and corruption that would destroy the sanctity of college sports.

With Gov. Newsom signing the bill, the NCAA will likely challenge its constitutionality. After the bill was signed, the NCAA released a statement agreeing that changes are needed to further support student-athletes. However, they believe that such changes need to be made at a national level due to the NCAA’s national presence and interstate conduct.

Thus, it is likely the NCAA will challenge the act on the grounds that it violates the commerce clause by attempting to regulate a national association.

Although the act will not become operative until Jan. 1, 2023, California has imposed a deadline on the NCAA. The decisions the NCAA, and likely the courts, make over the next three years have the potential to completely alter the landscape of intercollegiate athletics.

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