Just weeks after the NCAA called California Senate Bill 206 “unconstitutional” and an “existential threat,” the NCAA Board of Governors voted unanimously Tuesday to allow college athletes to benefit of the use of their name, image and likeness “in a manner compatible with the collegial model.
On the surface, this was a major turnaround by the NCAA. However, it remains unclear exactly how athletes would benefit. For example, the NCAA’s statement included the word “compensation” only once, as in: “Make it clear that compensation for performance or athletic participation is not permitted.” »
“The NCAA has been signaling for months that such benefits would not constitute true compensation,” said Ramogi Huma, executive director of the National College Players Assn.
Still, the fact that the NCAA says it is open to reform on this issue is significant. Ohio State President Michael V. Drake, chairman of the NCAA Board of Directors, said in a statement that the organization “must embrace change to provide the best possible experience for college athletes.” , then immediately added: “Additional flexibility in this area can and must continue to support university sports within higher education.
If that seems vague, at least this much is clear: if name, image, and likeness rights are granted to players in a way that matches the way things have always been done, with artificially limited limits set in compensation and regulation, then the organization’s attempt at reform at the national level will not meet the free-market standards set in the landmark California legislation, signed into law by Governor Gavin Newsom in late September.
Contacted by the Times on Tuesday, California Senator Nancy Skinner, author of SB 206, began by saying: “It’s a good day.”
She did not want to show a lack of appreciation for the NCAA’s willingness to look into the issue further, saying, “I’m just thrilled that California’s leadership is once again changing the game.” And I think the NCAA vote today is very promising.
But let there be no confusion. That promise, for state lawmakers in California and other states considering bills like SB 206, remains unfulfilled.
“The devil is in the details,” Skinner said. “For example, what does the NCAA mean by ‘collegiate model’? Because here in California, and I think in most states, students on college campuses other than athletes have the right to generate income from their skills and talents. So we want to make sure that the NCAA doesn’t have arbitrary limitations in mind.
The NCAA formed a working committee this summer to examine the issue. On Tuesday, the organization laid out the group’s recommended principles that will guide the philosophy behind upcoming rule changes.
Among them (with key phrases in italics):
- “Ensuring that student-athletes are treated the same as non-student-athletes. unless there is a compelling reason to differentiate.”
- “Ensure that the rules are transparent, targeted and enforceable and facilitate fair and balanced competition.”
- “Make a clear distinction between college and professional opportunities.”
- “Make it clear that remuneration for performance or participation in athletics is not permitted.”
- “Reaffirm that student-athletes are students first, not employees of the University.”
- “Protect the recruitment environment and ban incentives to select, stay or transfer to a specific facility.
With these principles in place, could the changes the NCAA chooses to adopt be meaningful for college athletes, particularly those in football and men’s basketball who help bring in millions of dollars each year? What new benefit could the NCAA allow for players’ use of their name, image and likeness that complies with these guidelines?
California law does not place limits on what an athlete can receive from the use of his or her name, image and likeness, except that an athlete cannot endorse a product that is in direct competition with a school sponsorship agreement.
“This is a step in the right direction, and the NCAA deserves credit for finally affirming what has been common sense for so many for so long,” Newsom said in a statement. “California will closely monitor the progress of the NCAA process to ensure that the rules ultimately adopted are aligned with the legislation we passed this year. College student-athletes put everything on the line – their physical health, career prospects and years of life – to compete. Universities reap billions from the sacrifices and successes of these student-athletes, but at the same time, prevent them from earning a single dollar. This model puts institutions ahead of the students they are supposed to serve and deserves to be disrupted.
The NCAA appears committed to regulating name, image and likeness benefits to ensure fair recruiting between schools. The fear is that a promoter for a school will pay well above the perceived market value for a sponsorship deal with a player to secure that player’s commitment to the school.
“That’s kind of what’s happening (now),” Skinner said, referring to under-the-table payments to players that lead to NCAA enforcement investigations.
The NCAA said its Name, Image and Likeness Working Committee “will continue to gather feedback through April on how to best respond to the state and federal legislative environment and refine its recommendations on the principles and regulatory framework. The board has asked each division to create new rules now, but no later than January 2021.”
“The NCAA has failed once again on this issue,” Huma said. “This is yet another attempt to block this issue.”
SB 206, as written, would not take effect until January 2023. That’s more than three years away, enough time to close the gap between what California law says and the vision of the NCAA on what name, image and likeness reform would entail. look like.
“What the NCAA is trying to do here is say, ‘OK, we’re going to get closer to where you want us to be,'” said Matthew Cantor, an antitrust lawyer at Constantine Cannon LLP in New York , who followed the affair. The NCAA’s many antitrust court battles. “They will want some degree of assurance from the states that their reformed policies are consistent with the enacted law, or they will (try) to obtain changes through the legislature.”
Cantor said that if a compromise with California cannot be reached by 2023, the NCAA could choose to seek a preliminary injunction from the courts that would prevent the law from taking effect. The NCAA could ultimately take legal action through a “dormant commerce clause,” which prevents states from interfering with interstate commerce governed by Congress.
To put it more simply, California vs. the NCAA is just getting started. On Tuesday, the NCAA offered an olive branch and California made clear that the organization will have to move further out of its comfort zone.
“I definitely have an open mind,” Skinner said, “but I will also be watching closely.”
