Fair Pay for Play Act: California won the battle; who will win the war?
By Matthew Romano
The following article appeared in the November 2019 edition of The Campus.
It’s justafter spooky szn and there is a history-making development regarding alongstanding dispute over paying college athletes that has ghosts of the NCAA’spast out on the haunt, advocates for the NCAA’s traditional ‘amateurism’model spooked, and what is likely to be a 4-year legal battle brewing.
OnSeptember 30th, California’s Democratic Governor, Gavin Newsom, withmuch theatrics and fanfare, signed the Fair Pay for Play Act (SB 206).Sittingalongside the governor as he warned the NCAA, “I don’t want to say this ischeckmate but…” was LeBron James, Ed O’Bannon, and many other players in thefight for student athlete compensation.
The FairPay for Play Act, which is anticipated to be enacted in 2023 pending itssurvival in litigation battles, will make California the first state in thecountry where student athletes are eligible for compensation for the use of theirname, image, and likeness (termed NIL rights) in endorsements andcommercials.
ThoughNewsom and LeBron’s will get the majority of attention and credit for the act,there are 2 other important people behind the production of monumental momentin the history of college athletics.
Ed O’Bannon – The writing on thewall
EdO’Bannon, a former UCLA power forward, is known as the lead plaintiff in hisclass action suit O’Bannon v. NCAA. This case, despite failing to achieve NILcompensation, allowed players to receive scholarships equaling cost-of-attendance,marking a significant shift in court bullish opinions on the issue ofamateurism, player compensation, and the relation of antitrust law to the NCAAover the previous 30 years. The writing was on the wall for the eventual “EdO’Bannon laws” as they are being coined, of which SB 206 became the first.
Nancy Skinner – the woman behindthe win, the war.
In 2015,Nancy Skinner set her attention towards the NCAA, a “multibillion-dollarenterprise dependent on amateur athletes.” Now in the State Senate forCalifornia’s 9th district, Skinner co-wrote the 2019 bill securingNIL rights and an attached monetary value, which passed the Assembly and Senatefloors with bipartisan support and the approval of notable figures in sportsand politics like, LeBron James, Bernie Sanders, and Duke Men’s Basketballcoach, Mike Krzyzewski.
Despitethe success of Skinner, Newsom, and their star-studded supports, the fightcontinues. Sadaab Rahman, a political science major at City College, commented,“The battles are far from over yet, and actually just beginning.” Yet, the mostinteresting stories to follow in this ongoing tussle might not occur on gymfloors, but in the senate and courtrooms.
In thewake of the act’s signing, politicians across the table and around the nationare scrambling to propose similar or more extensive bills. According to MattNorlander of CBS Sports.com, as many as ten other states, including New York, arein the bill proposing process.
On the flipside, the NCAA and thePAC-12 are expected to respond with counter-litigation in the hopes ofoverturning the California law. The NCAA has responded with a statement highlightingthe confusion that state-by-state legislation will cause. Rahman, who concurswith the concern, warns, “…while this may seem like agood thing, I actually think it will complicate matters tremendously. Thereason being, when you have different state laws, it becomes hard, if notimpossible, to create a nationwide standard which the NCAA wants under theCommerce Clause.”
The PAC-12conference warns of the negative effects the law will create around issues of theprofessionalization of college sports, recruitment imbalance, and negativeimpact on female athletes. Additionally, the new law has prompted the NCAA to threatento ban California universities from championship competitions. However, thelegitimacy of the threat is questionable as California makes up the NCAA’s largesteconomic beneficiary and has the world's fifth-largest economy. All signs pointto federal action unless the NCAA and the PAC-12 can manage to eke out a nowunexpected win and overturn the new California law.
Some find themselvesin support of the players in this dispute; Rahman has said, “I think it’s agame changer for college sports and long overdue… but there is sure to beopposition from those who don’t want to see young men and women benefit from asystem that has long profited off them and their situation.” However, others likeEric Bilach fear, “The selfishness and self-importance that could be cultivatedamong young players, the prioritization of athletics over academics, and thekilling of the distinction between amateur and professional sports.”
The battlemay have commenced at the tip of Newsom’s pen, but the side that wins the waris still to be determined.
