California Prepared to Battle the NCAA Over Pay-to-Play

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The California Senate unanimously voted to pass the California Assembly’s version of the Fair Pay to Play Act (SB-206) on September 11, 2019. The bill will allow student-athletes to earn compensation through endorsements or sponsorships. If signed by California Gov. Gavin Newsom, the bill would take effect January 1, 2023. If the governor does nothing, or he does not veto the bill, then the bill becomes law.

Paying student-athletes for use of their name, image, and likeness contradicts current NCAA rules and regulations regarding student-athlete eligibility for intercollegiate competition. Previously, we reported that the assembly voted to pass an amended version of SB-206. The Senate’s passage of this amended version of the bill sends the bill to the governor’s desk to be signed into law.

Passage of the bill sets up a fight about fair compensation for use of student-athletes’ names, images, and likeness, and the constitutionality of SB-206, which the NCAA has opposed from its inception. The NCAA sent a letter to Gov. Newsom urging California to reconsider the bill.

If the bill does become law, the 58 member schools in the state would become ineligible to participate in NCAA competitions. The letter goes on to cite the distinction between amateur and professional sports; “fairness and treatment” across the nation’s 1,100 member schools; and the NCAA’s “efforts to develop a fair name, image and likeness approach for all 50 states.” The NCAA has reiterated its efforts to develop a fair policy.

California State Sen. Nancy Skinner, SB-206’s primary sponsor, said that the NCAA has “had decades to reconsider its name, image and likeness rules.” Skinner hopes this bill will pressure the NCAA to act. Donald Remy, the NCAA’s chief legal officer, believes the bill is unconstitutional because it improperly interferes with interstate commerce. The NCAA’s letter to Gov. Newsom, and the NCAA’s comments about the bill, signal a willingness to sue California under the Commerce Clause. Skinner disagrees with the belief that the bill violates the Commerce Clause.

If the NCAA does ban the 58 member schools in California, Skinner believes it would violate antitrust laws. A legal battle concerning the constitutionality of the bill is likely to arise if the bill becomes law.

The bill continues to gain support from NBA superstar, and Los Angeles Laker, LeBron James. He agrees that student-athletes should be compensated for “what they do and the billions they create,” and that a national policy “that is fair to athletes” should be created. Notably, California is home to the top three schools with the most NCAA championships: Stanford University; University of California, Los Angeles; and University of Southern California. California’s legislature is standing firm and has signaled its willingness to fight. It is now up to Gov. Newsom to decide whether the state will go to battle against the NCAA.

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