The NCAA on Wednesday said proposed legislation in California aimed at giving college athletes a chance to earn money while in school — known as the Fair Pay to Play Act — is harmful and unconstitutional and would “upend the balance” of national competition in college sports.
The organization’s board of governors sent a letter Wednesday to California Gov. Gavin Newsom, asking that the state not pass the bill.
California’s state senate voted Wednesday to pass the Fair Pay to Play Act with a tally of 39-0. The California State Assembly approved the bill with a 73-0 vote earlier this week. The bill now moves to Newsom, who will have 30 days decide whether he will sign it into law.
The proposed legislation, which would not go into effect until 2023, would make it illegal for California schools to take away an athlete’s scholarship or eligibility as punishment for accepting endorsement money.
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The NCAA opposes the bill because it would make it illegal for California schools to follow the NCAA’s rules on a player’s ability to make money by selling the rights to his or her own name, image or likeness. The association is open to updating its rules to better fit the 21st century, according to NCAA Board of Governors Chair Michael Drake, but wants those changes to be made on a national scale rather than state by state.
Drake, who is also the president at Ohio State, told ESPN that the NCAA is “working actively to look at ways to modernize its approach to name, image and likeness restrictions.”
The board of governors assembled a group of university presidents, conference commissioners and athletic directors to examine possible changes earlier this year, shortly after state Sen. Nancy Skinner proposed the new law in California.
Drake said he’s eagerly awaiting the recommendations of that working group, which is expected to report back to the board at some point in October. Drake and his fellow board members concluded their letter to Gov. Newsom by asking California to be a “constructive partner in our efforts to develop a fair name, image and likeness approach for all 50 states.”
When asked if the NCAA’s current rules are fair, Drake said the rules need to evolve.
“Well, fair is an interesting word,” Drake told ESPN. “We need to look at [NIL rules] carefully. My understanding broadly of name, image and likeness and the implications of those restrictions has changed really over the last several years and continues to evolve. We need to make sure our rules and guidelines evolve forward. We’re not the association of the 20th century. We need to make sure we have 21st century rules.”
Los Angeles Lakers star LeBron James, who has tried to rally support for the bill in California by saying change is “waaaayy overdue,” again took to Twitter on Wednesday to challenge the NCAA to create a new national policy.
Or….because of this bill, you can work with everyone to create a national policy that is fair to the athletes. ??♂️✊??https://t.co/Ey3lBzeB3v
— LeBron James (@KingJames) September 11, 2019
Donald Remy, the NCAA’s chief legal officer, told the Associated Press he believes the bill is unconstitutional because it would inappropriately affect interstate commerce. Skinner disagreed with Remy’s assessment and said legislators worked with experts to construct a bill that would meet constitutional standards.
“Numerous legal scholars assert that SB 206 is constitutional and that an NCAA ban of California colleges from championship competition is a clear violation of federal anti-trust law,” Skinner said in a statement Wednesday. “The NCAA has repeatedly lost anti-trust cases in courts throughout the nation. As a result, threats are their primary weapon.”
Skinner, the Berkeley-based politician who first introduced the Fair Pay to Play Act, said the NCAA has had decades to reconsider its name, image and likeness rules while a variety of lawsuits related to those guidelines played out in court. She said she believes the NCAA needs legislative pressure to be prompted to act and hopes that California’s bill will be the first step in forcing a national change in how college athletes are allowed to be compensated.
Several other states are considering similar laws. Congressman Mark Walker of North Carolina has proposed a change to federal tax code that could force the NCAA to change its position on name, image and likeness on a national scale.
Drake said a national change is much more desirable for the NCAA.
The board of governors’ letter said that California’s law — if nothing changes nationally before it goes into effect in 2023 — would result in California schools being barred from national NCAA competitions.
Drake said he fully expects some resolution would be reached on a national level before 2023, which would avoid a situation in which California schools would be outlawed from the NCAA.
“I think it will be regrettable if it weren’t the case,” Drake said.
“Our rules and guidelines are meant to support us as a national organization,” Drake added earlier. “We allow students the great privilege of competing for national championships, and we believe that the proper way to work toward progress is for the association to do this on a national basis.”
The Pac-12 issued a statement reiterating its previous stance — asking the California Legislature to delay the debate until the NCAA announces formal proposals.
“We all want to protect and support our student-athletes, and the Pac-12 has played a leadership role in national reforms for student-athletes over the past years,” the statement said. “The question is what’s the best way to continue to support our student-athletes. We think having more information and informed views will be helpful.”
Added San Diego State athletic director J.D. Wicker: “California weighing in on this complicates that. I think the frustration for me is that they probably don’t truly understand the NCAA and how we work as a governing body. Again, it’s schools across 50 states and it’s all of us working together, whereas the state of California will only harm California schools.”
An update in August from the NCAA’s group examining this issue said any change the association makes would have to maintain a connection between compensation and the educational component of being a student-athlete. Drake said the board’s main focus in weighing a range of future options with name, image and likeness rights will be on making sure that the distinction between professional sports and college sports still exists.
“There would be places in that relationship where that might be blurred to the point of being a distraction,” Drake said. “That’s what we would want: to make sure we had that distinction clear.”
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