A state skirmish over NCAA amateurism rules has quickly become a national battle
By Billy Witz
The New York Times Sports department is revisiting the subjects of some compelling articles from the last year or so. Here is their original report on the introduction of a California bill that would allow college athletes to benefit financially from their fame.
When Greg Sankey, the commissioner of the Southeastern Conference, suggested recently that the NCAA tap the legislative brakes on new rules that would allow athletes — be they gymnasts or football stars — to cash in on their fame, Nancy Skinner was not surprised.
Skinner, a California state senator from Berkeley, said such foot-dragging was familiar, something she had first noticed several years ago when Condoleezza Rice — appointed by the NCAA to head a commission that would propose college basketball reforms — was discouraged from suggesting in her report that players receive a share of the revenue they generate.
“At that point, it was, hey, they’re not going to do it on their own,” Skinner said. “They’ve got to be forced.”
Not long after that, Skinner got to work on legislation outlawing NCAA restrictions on athletes at California universities that prevented them from earning money from the use of their names, images or likenesses. For example, while a film major who doesn’t play a varsity sport is permitted to generate income making YouTube videos, a film major who is also an athlete may not.
Senate Bill 206 — or the Fair Pay to Play Act, as the proposal was called — received shout-outs from presidential candidates Andrew Yang and Sen. Bernie Sanders of Vermont and basketball stars LeBron James and Draymond Green. It passed unanimously in both houses of the state Legislature before Gov. Gavin Newsom shrugged off an argument from the NCAA board of governors that the bill was unconstitutional and signed it into law in September 2019.
At the time, the NCAA and college administrators warned of a doomsday scenario: that California universities would be banned from competing for NCAA championships because they would have unfair advantages in luring recruits with the opportunity to make money from their athletic skill and fame.
Soon, though, rather than sticking out as an outcast, California became a trendsetter. Colorado, Florida, New Jersey and Nebraska passed similar legislation, and bills in the same vein have been proposed in more than 20 other states.
The NCAA, rather than fight these movements at the state level, has gone to Congress to seek federal legislation that would supersede state laws and provide antitrust protection to fend off lawsuits that have begun to chip away at the amateurism model that has prevented athletes from sharing in the profits that have made millionaires of top coaches and administrators.
Two Senate bills introduced this month will get greater attention in the next session, which begins in January. One, introduced by Sen. Roger Wicker, R-Miss., allows athletes to make money off their names, images and likenesses, but it comes with restrictions — including protecting colleges’ lucrative apparel deals — as well as the NCAA’s coveted antitrust exemption. The other, by Sen. Cory Booker, D-N.J., reaches far beyond image rights, calling for profit-sharing with players in sports like football, men’s and women’s basketball and baseball. Which bill gets greater attention will be determined by who controls the Senate after the two runoff elections in Georgia on Jan. 5.
Booker said the state legislation had forced the NCAA’s hand, leaving it no choice but to come to Congress. He said lawmakers could correct a mistake made in the 1950s, when the NCAA coined the term “student-athlete” to convince Congress and subsequently the courts that players should not be considered employees and therefore could not pursue workers’ compensation claims if injured.
“We think that this is the right opportunity,” Booker said, “where we have a lot of leverage to get forward an athlete-centered proposal that can stop the exploitation, ensure their safety, expand their educational opportunities and frankly help them actually share in some of the revenue that’s being created by their work.”
Skinner also recently proposed new legislation that would bolster the Fair Pay to Play Act and push up its implementation date by as much as 17 months, to Aug. 1, so that it would go into effect on the same date as any NCAA rules that are adopted by the governing body next month. It would also go into effect a month after the Florida law.
“I want to make sure California student-athletes have the protections that we were intending for them,” Skinner said.
To that end, there have been several adjustments to the language of the Fair Pay to Play Act, which Skinner said would make explicit parts of the law that are now merely implied. For example, the NCAA proposal would allow a swimmer to give lessons, but only if the client or a family member paid for them. Skinner would assure that the athlete could be paid by, for example, a nonprofit group that helps low-income children receive swim lessons. She points out that such restrictions would not be placed on a music student who gave lessons, so there should not be any on a swimmer.
The latest California bill also proposes adding a severability clause so that if the NCAA challenges aspects of the law, the whole law would not be suspended until the court case was resolved, something that could take years.
And despite a wave carrying what she views as a civil rights issue from statehouses to the U.S. Senate, Skinner suspects the matter is far from resolved — whether it is in court or in Congress.
“This is a huge industry, and with any huge industry, the folks that are receiving and controlling the money are going to protect their interests and protect them hard,” Skinner said. “Regardless of who’s controlling the Senate, there’s going to be incredible pressure to try to get a national bill that, in effect, serves the NCAA versus students. Everyone who cares about this issue, and wants to make sure that student-athletes are getting a fair shake, needs to monitor it.”