Is it Fair Play to Pay?: Refereeing California’s Fair Pay to Play Act

Source: https://flic.kr/p/aoAG8a

By Samuel England*

At 4:00pm Pacific Daylight Time on September 18, California Senate Bill 206 was presented to Governor Gavin Newsom.[1]  SB 206 is better known as the Fair Pay to Play Act, and it would proscribe state “postsecondary educational institutions” from “prevent[ing] a student[-athlete] from earning compensation [for their] name, image or likeness” and parallel protection for “the student’s scholarship eligibility.”[2] This proscription is antithetical to the current NCAA regime that, instead, prohibits this type of compensation of student-athletes.[3]

One week prior to the bill’s presentation to the Governor, it had received a favorable vote of 39-0 in the California Senate, which had followed a similar vote of overwhelming support, seventy-three to zero, in the California Assembly.[4] After presentation, the Governor had twelve days to sign or veto the enrolled bill before it would otherwise become law without his signature.[5] On September 30, the Governor’s deadline for taking action on the bill otherwise destined to become law, he signed the Fair Pay to Play into law.[6]  Before the Governor’s signature, stakeholders on each side of the debate not only watched with baited breath from around the nation to see what will happen next but also weighed in like campaign staffers in a post-debate media spin room, attempting to conform coverage to their normative views on whether it is fair play to pay student-athletes for their work.[7] Since his signature, this debate has continued to unfold.[8]

Boos and Cheers

Despite such strong support by the California legislature, the bill has received pointed criticism from opponents ranging from the NCAA and universities within the state to former Florida quarterback, Heisman Trophy winner, and current SEC Nation co-host Tim Tebow.[9] This bill signaled to Tebow a shift from a collective, team-oriented mindset to a individualistic one, he argued in an interview with Stephen A. Smith, by “changing it from us, from we, from my university, from being an alumni [sic] where I care, which makes college football and college sports special to then, okay, it’s not about we it’s just about me.”[10] This individualistic mentality, Tebow implicitly warned, would damage college sports because the team mentality is “why people are more passionate about college sports than they are about NFL” and “why the stadiums are bigger in college than they are in the NFL.”[11] ESPN also reported that despite Dabo Swinney, Clemson University football coach, signing a decade-long contract from which he is guaranteed more than nine million dollars per year, “he would walk away from college coaching and do something else if players were paid as employees.”[12]

The NCAA Board of Governors has gone as far to pen to Governor Newsom a letter in which it argued the bill was constitutionally impermissible because of its resulting interference with interstate commerce, an area reserved to the purview of the Congress, not a state legislature, by Article I Section 8 of the United States Constitution.[13] A similarly oppositional letter from NCAA President Emmert warned the bill would, inter alia, preclude involvement of California teams in certain championship games and matches.[14] The bill’s sponsor, California State Senator Nancy Skinner, countered the Board’s and Emmert’s assertions by condemning the former as legally inaccurate and the latter as repugnant to antitrust jurisprudence.[15]

However, unlike the virtually unanimous California legislature, athletes and other sports commentators have not been of one voice on this issue.[16] Echoing the description of the bill its sponsor proffered about “fundamental fairness,” ESPN basketball analyst Jay Bilas has contrariwise framed the bill’s concern with student athlete compensation as “a civil rights issue for athletes to have the same economic rights as literally everyone else.”[17] Bilas went further, calling the NCAA’s lobbying “threatening” and “a little bit distasteful.”[18] After analogizing this bill and the surrounding movement to a “train [that] keeps moving down the tracks,” he characterized the NCAA’s lobbying efforts as essentially saying “if you do this we will strap the—we will strap the players to the—and lash them to the tracks so that the train runs them over.”[19] LeBron James tweeted his support of the California bill in early September before the bill had garnered a final vote in either legislative house, asking his Californian followers to phone their legislators to advocate for their vote for the bill.[20] While Tebow had distilled the motive behind the bill as “taking [what makes college football special] away just so college kids can earn a dollar,” others were quick to point out the disparity in financial means of college athletes, highlighting the reality that not all student-athletes are privileged to be able to afford the living expenses associated with college without compensation for their work.[21]

Impact

Outspoken opposition notwithstanding, other states have contemplated similar bills.[22] Despite Dabo Swinney’s aforementioned admonition of student-athlete compensation, two South Carolina legislators have announced that as soon as their legislature reconvenes, they will pursue legislation similar to California’s Fair Pay to Play Act.[23] New York’s legislature also reconvenes in January, and there is a state Senator there who has written legislation to require each of the state’s universities to share fifteen percent of its sports revenues evenly among its student-athletes.[24] Moreover, support has also come at the federal level.[25] Earlier this year, Senator Chris Murphy of Connecticut, a Democrat, and Representative Mark Walker of North Carolina, a Republican, issued a bipartisan report intended to highlight the disparity between the individual student-athletes whose play makes the system possible and the rest of the actors within college sports (e.g. coaches, universities, vendors) who are the highly-compensated beneficiaries of the system.[26] Representative Walker has also sponsored a tax code bill which would endanger the NCAA’s tax exempt status should it not amend its policies to allow student-athletes to profit from their likenesses.[27] Should the NCAA not make this policy change, Ohio Congressman Anthony Gonzalez made public his intentions to introduce more legislation in the United States Congress in an attempt to accomplish the same end: player compensation.[28] That it has yet to be seen whether any of these bills outside California will successfully become law only heightens tensions as universities and colleges throughout the nation lie in wait, planning, no doubt, how to remain competitive in the realm of college sports if more of these bills become law.[29]

The impact of the California Fair Pay to Play Act may have more downstream impact as well; the delay between its enactment and enforcement is more than three years: the law will not become effective until January 1, 2023.[30] Influenced by the need to remain competitive with the many universities and colleges throughout California, South Carolina, and New York, stakeholders in other states may be pressured into lobbying their state legislatures to follow suit, passing similar bills requiring, or at least permitting, compensation of student-athletes.[31] For now, the watch continues; will this be a mere political aberration that will end in the entrenchment of the status quo, or are we on the cusp of an inflection point in college sports that will completely transform and fundamentally redefine the relationship of student-athletes to their institutions?[32]

*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2020, Villanova Charles Widger School of Law

[1] See California Legislative Information, SB-206 Collegiate athletics: student athlete compensation and representation, History. (2019-2020), https://leginfo.legislature.ca.gov/faces/billHistoryClient.xhtml?bill_id=201920200SB206 (chronicling bill’s legislative journey beginning with introduction on Feb. 4, 2019).

[2] S.B. 206 §2 (a)(1), 2019 Leg., Reg. Sess. (Cal. 2019).

[3] See NCAA Defends Scholarships for College Athletes: Lawsuit Challenges Rules that Support Hundreds of Thousands of Students, NCAA (Sept. 4, 2018), http://www.ncaa.org/about/resources/media-center/feature/ncaa-defends-scholarships-college-athletes (defending propriety of outlawing compensation of college student-athletes in favor, alternatively, of scholarship regime and enumerating argument in favor thereof as (1) academic priorities, (2) “popularity of college sports,” (3) absence of “viable [legal] alternative,” and (4) superior governing position of NCAA).

[4] See California Legislative Information, SB-206 Collegiate athletics: student athlete compensation and representation, Votes. (2019-2020), https://leginfo.legislature.ca.gov/faces/billVotesClient.xhtml?bill_id=201920200SB206 (noting bill passed Assembly floor 73-0).

[5] See California’s Legislature at 128, LegInfo.CA.gov, http://www.leginfo.ca.gov/pdf/Ch_09_CaLegi06.pdf (explaining legislative process of SB-206).

[6] See California Legislative Information, supra note 1 (recording Governor’s September 30 approval); see also Gavin Newsom (@GavinNewsom), Twitter (Sept. 30, 2019, 7:06 AM), https://twitter.com/GavinNewsom/status/1178672387136425985 (showing video of Governor Newsom signing bill into law with, inter alia, LeBron James present).

[7] For further discussion of this public debate in the media, see infra notes 9–20 and accompanying text. For further discussion of this public debate in other state legislatures and Congress, see infra notes 21–31 and accompanying text.

[8] See, e.g., SportsCenter (@SportsCenter), Twitter (Sept. 30, 2019, 2:25 PM), https://twitter.com/SportsCenter/status/1178783060705325056 (providing video of Draymond Greene saying, “Someone needs to force this dictatorship to change. . . . The NCAA is a dictatorship”).

[9] See First Take (@FirstTake), Twitter (Sept. 13, 2019, 11:51 AM), https://twitter.com/FirstTake/status/1172538239095332864 (verbal pauses omitted).

[10] Id. (verbal pauses omitted).

[11] Id. (verbal pauses omitted).

[12] Dan Murphy, South Carolina to consider Fair Pay to Play-type bill, ESPN (Sept. 13, 2019), https://www.espn.com/college-football/story/_/id/27607396/s-carolina-consider-fair-pay-play-type-bill.

[13] See Nathan Fenno, NCAA warns California bill that would allow college athletes to be paid is ‘unconstitutional’, LA Times (Sept. 11, 2019), https://www.latimes.com/sports/story/2019-09-11/ncaa-fair-pay-bill-college-athletes-gavin-newsom (reprinting language from NCAA letter to Governor Newsom that indicates eventual disqualification from games if bill is enacted); see also Christopher Bumbacca and Steve Berkowitz, NCAA sends California governor letter calling name, likeness bill ‘unconstitutional’, USA Today (Sept. 11, 2011), https://www.usatoday.com/story/sports/ncaaf/2019/09/11/ncaa-sends-letter-calling-california-likeness-bill-unconstitutional/2284789001/ (indicating letter implored Governor to “be a constructive partner” in search for nationwide solution instead of state-by-state action); see generally Dan Murphy, California Senate Oks athlete bill NCAA calls harmful, ESPN (Sept. 11, 2019), https://www.espn.com/college-sports/story/_/id/27593438/calif-senate-oks-athlete-bill-ncaa-calls-harmful (chronicling NCAA opposition to California bill); U.S. Const. Art. I § 8 (“The Congress shall have the power. . . to regulate Commerce. . . among the several States”).

[14] See Melody Gutierrez and Nathan Fenno, California would allow college athletes to profit from endorsements under bill sent to Newsom, LA Times (Sept. 12, 2019), https://www.latimes.com/california/story/2019-09-11/california-college-athletes-endorsements-bill (quoting language from Emmert’s letter to California legislators in June); see also Dan Murphy, California Bill to pay NCAA athletes takes another step, ESPN (Sept. 9, 2019), https://www.espn.com/college-sports/story/_/id/27582269/calif-bill-pay-ncaa-athletes-takes-another-step (showing how far NCAA President Emmert was willing to go to illustrate NCAA’s opposition); see generally Jenni Fink, California Senator Undeterred by NCAA Threat Over Bill Allowing College Athletes to Sign Endorsement Deals, Newsweek (June 25, 2019), https://www.newsweek.com/ncaa-endorsement-deals-fair-pay-play-act-1445725 (illuminating background conflict between State Senator Skinner and NCAA).

[15] See Murphy, supra, note 11 (reproducing State Senator Skinners rebuttal to NCAA).

[16] Compare First Take, supra note 7, with Jay Bilas (@JayBilas), Twitter (Sept. 10, 2019 3:23 PM), https://twitter.com/JayBilas/status/1171504363128254464 (“Name, image and likeness rights for players is a civil rights issue. Literally every other person, including every other student, is allowed full economic rights. What’s the excuse for limiting athletes only? There isn’t one.”).

[17] Murphy, supra, note 12 (quoting State Senator Skinner’s framing of California’s bill); Bilas, supra note 14.

[18] Bilas, supra note 14.

[19] Bilas, supra note 14.

[20] See LeBron James (@KingJames), Twitter (Sept. 5, 2019 11:21 AM), https://twitter.com/KingJames/status/1169631712009080832 (“Everyone in California- call your politicians and tell them to support SB 206! This law is a GAME CHANGER. College Athletes can responsibly get paid for what they do and the billions they create.”).

[21] Compare First Take, supra note 7, with David Mulugheta (@DavidMulugheta), Twitter (Sept. 13, 2019 12:56 PM), https://twitter.com/DavidMulugheta/status/1172554595014496256 (“Just in case anyone is curious, this is what ‘privilege’ sounds like. I guarantee @TimTebow never missed a meal growing up because his parents didn’t have the means, nor does he understand what having to help your mother pay bills so the lights stay on feels like.”), and Keith Olberman (@KeithOlberman), Twitter (Sept. 13, 2019 2:28 PM), https://twitter.com/KeithOlbermann/status/1172577881647722497 (“And everything I have in MY career started with an unpaid internship in the newsroom of a NYC TV station (which I could take while others couldn’t because I didn’t need to make money). One of the definitions of privilege is, thinking ‘the system works because it worked FOR YOU.’”).

[22] See generally Avery G. Wilks, 2 SC lawmakers will file proposal to pay college athletes, following California’s lead, Greenville News (Sept. 13, 2019), https://www.greenvilleonline.com/story/news/2019/09/13/2-sc-lawmakers-file-proposal-pay-college-athletes-following-california/2311072001/ (discussing background of similar South Carolina bill); see also Joseph Nardone, New York Senator Proposes Bill to have College Athletes Paid Directly By Schools, Forbes (Sept. 18, 2019), https://www.forbes.com/sites/josephnardone/2019/09/18/new-york-senator-proposes-bill-to-have-college-athletes-paid-directly-by-schools/#3c21b2524d17 (providing background on similar New York bill).

[23] See Murphy, supra note 10 (describing South Carolina State Senator Marlon Kimpson and Representative Justin Bamberg’s intended bill).

[24]See Dan Murphy, N.Y. senator proposes bill to pay college athletes, ESPN (Sept. 18, 2019), https://www.espn.com/college-sports/story/_/id/27644345/ny-senator-proposes-bill-pay-college-athletes (including description of recent amendment that set revenue-sharing requirement at specific level).

[25] See Rob Dauster, U.S. Senator Chris Murphy calls for NCAA to pay athletes, NBCSports  (Mar. 28, 2019), https://collegebasketball.nbcsports.com/2019/03/28/u-s-senator-chris-murphy-calls-for-ncaa-to-pay-athletes/comment-page-1/ (elucidating congressional support for similar measures).

[26] See id. (linking to fifteen-page report that promises to be first of several in series on student-athlete compensation).

[27] Lindsay Gibbs, Republican congressman introduces bill to fix the injustice of college sports, ThinkProgress (Mar. 18, 2019), https://thinkprogress.org/mark-walker-bill-ncaa-amateurism-55577ac344e4/ (reporting on potential for NCAA’s tax emption status removal under Walker’s Student-Athlete Equity Act).

[28] See Phil Harrison, Former Ohio State wide-receiver and current congressman Anthony Gonzalez plans to introduce federal Fair Pay to Play Act, USAToday (Oct. 3, 2019), https://buckeyeswire.usatoday.com/2019/10/03/ohio-state-wide-receiver-anthony-gonzalez-fair-pay-to-play/ (highlighting potential ramifications on Ohio State University as one motivating factor for national uniformity sought by Buckeye alumnus Congressman).

[29] See Murphy, supra note 21 (recording hope of California’s bill sponsor that similar legislation will spread across states).

[30] S.B. 206 §2 (h), 2019 Leg., Reg. Sess. (Cal. 2019).

[31] See Murphy, supra note 10 (reporting on expectation by California bill sponsor that other states will continue to follow suit in passing similar bills, pressuring NCAA to act).

[32] See id. (marking belief of South Carolina legislator that each state’s bill will provide incentive to others to pass similar legislation in response to shift in public perception of student-athlete compensation).