The Battle for Student-Athlete Pay Rages: New York Joins the Movement

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California’s state legislature passed The Fair Pay for Play Act (SB-206), which is designed to allow student-athletes to earn compensation through the use of their name, image, and likeness. Previously, we reported that two South Carolina state lawmakers intend to introduce a similar bill.

On September 23, 2019, the Empire State joined the movement after New York State Sen. Kevin S. Parker introduced a bill similar in language to the bill California recently passed. Parker believes this is about equity. He understands that student-athletes are “adding their skill, talent and labor to [the] universities” and this measure would provide “real support for [the] student athletes.” New York’s bill, unlike the California bill, would require “college athletics departments to give a 15% share of annual revenue to student-athletes.”

The proposed bill, if enacted, would prohibit schools from revoking student-athlete scholarships if those students earn compensation from the use of their name, image, and likeness. In addition, the bill’s language directly targets the NCAA and prevents the association from taking action against participating schools and student-athletes. The NCAA “shall not prevent” schools and student-athletes from participating in intercollegiate athletics if the student-athletes opt to earn compensation through the use of their name, image, and likeness.

Similar to the California bill, student-athletes would be prohibited from entering into sponsorship or endorsement deals that conflict with their college or university’s endorsement deal. For example, if an institution has a sponsorship deal with Nike, then a student-athlete would not be permitted to enter into a sponsorship with Adidas.

In essence, student-athletes would earn compensation through third parties because the bill would not require the NCAA to pay the student-athletes directly. However, the NCAA has voiced its opposition to state-level action. This past June, NCAA President Mark Emmert wrote a strongly worded letter to the California Assembly expressing the NCAA’s opposition to the measure. One key issue that the NCAA highlights is that state-level measures, if enacted, would create an unfair recruiting advantage in those states.

In addition, the NCAA believes that the bill is unconstitutional. The NCAA’s argument appears to hold weight according to Helen “Nellie” Drew, a national sports law expert and director of the University at Buffalo’s Center for the Advancement of Sport. Drew believes that a pay-to-play state bill “would seem to fall afoul of the commerce clause.” New York’s bill, similar to California’s, would not go into effect until January 1, 2023. However, if the bills are enacted, a legal battle between the states and the NCAA is likely to ensue. With more states introducing bills in conflict with current NCAA amateurism rules, questions loom concerning the future of the NCAA.

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