The NCAA, saying the quiet part out loud

So, the NCAA has sent off a sternly worded letter to California Governor Gavin Newsom, threatening to unleash hell if the Fair Pay to Play Act becomes law.

By “hell”, I mean, of course, more litigation.

Reference to the bill’s legality signals the NCAA’s potential willingness to sue California under the commerce clause of the U.S. Constitution, which says that only Congress has the power to regulate commerce among states.

The letter is signed by every member of the NCAA Board of Governors, the association’s top policy- and rules-making group.

In an interview with USA TODAY Sports, Ohio State President Michael Drake, who chairs the board of governors, confirmed that the association would consider legal action if the bill becomes law.

“We’ve looked at this very, very carefully and it does raise constitutional challenges,” Drake said, “so that’s something that would be looked at … yes.”

That letter, though, raises a concern that gives the amateurism game away.

“If the bill becomes law and California’s 58 NCAA schools are compelled to allow an unrestricted name, image and likeness scheme, it would erase the critical distinction between college and professional athletics and, because it gives those schools an unfair recruiting advantage, would result in them eventually being unable to compete in NCAA competitions.”  [Emphasis added.]

Those of us with an ordinary grasp of economics would react to the highlighted portion of that quote with a shrug and a “duh”, but if you’re an amateurism romantic who’s fully bought in to the notion that student-athletes are fairly compensated for their services already and should appreciate how good they’ve got it, the idea that there’s more money out there for them — something the board of governors clearly concedes — is heresy.  And yet that is what the NCAA is warning California it’s risking with the passage of this law.

27 Comments

Filed under Political Wankery, The NCAA

27 responses to “The NCAA, saying the quiet part out loud

  1. chopdawg

    What exactly does this mean: “NCAA rules presently allow athletes to make money from their name, image or likeness”? Thought that was strictly forbidden.

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  2. Derek

    Can the Alabama State Legislature pass a law that says that every recruit that signs with Auburn or Alabama may be given a car?

    If they pass the law and give the recruit a car, isn’t the player ineligible under NCAA rules no matter what the state legislature says?

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    • Dylan Dreyer's Booty

      You know this isn’t giving people a car. It is allowing them to profit from their own image and likeness. It a law prohibits the NCAA from denying an athlete the rights that anyone else in this country has. Pure and simple. No way is required to pay anything; the only effect is that the NCAA can stop it by their own fiat.

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      • Dylan Dreyer's Booty

        I need to read before I post: the law says the NCAA can NOT prohibit an athlete in California from profiting from his or her own image and likeness.
        Here’s a link to a podcast I listened to while driving around.
        https://www.wnycstudios.org/podcasts/takeaway/episodes
        it is today’s (9/11) episode and you fast forward through the opioid discussion. One point from a coach in response to those who say it will kill college athletics is that it is just as likely to save basketball because if they can legally make a little money, they will probably play more than a year at the college level.

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      • Derek

        The issue is: can a state get around ncaa eligibility rules?

        An analogy is an analogy. If you had to say exactly the same thing, there’s be no such animal as an analogy.

        Another example, can the state legislature of Georgia declare Herschel Walker eligible?

        The point is what NCAA eligibility rule can a state just declare null and void?

        I’m thinking….NONE.

        The legal merit of a state attempting to exempt its citizens from ncaa rules ought apply equally to those you agree with, don’t agree with and which have not even been mentioned heretofore.

        If California says: USC qb you can go sign with easports, or Nike or Adidas what’s to stop the ncaa from declaring that player ineligible if he does so?

        What’s his value at that point to the sponsor? It just seems a bit pointless to me.

        I get why the ncaa would rather challenge the law rather than police the effects one by one (it would be bad press each and every time) but my strong suspicion is that if the law is passed and any college athlete goes through with cashing in, then they are done playing college sports.

        If the effect of the law is that a California university can’t seek that written condition, the ncaa will make them each sign a contract with the national organization saying the same thing. What can California do about that? Nothing.

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        • Dylan Dreyer's Booty

          “The issue is: can a state get around ncaa eligibility rules?”
          The answer is: Hell yes! You may not like it, but at least this vote (which between the two houses was 111-0 in favor) was passed by people who were actually elected as opposed to the self-important NCAA poo-bahs who were elected by nobody. I realize the NCAA can cancel memberships and California can’t do anything about that, but if the NCAA does that they will be cutting off a lot of their funding from that one state, and harming every other institution that they represent. And other states are considering similar bills. This isn’t going to work out well for the NCAA if they keep pressing this. Their won-lost legal history going back into the 50s (it didn’t have an Executive Director until the early 50s) is poor at best. Let’s just say they wouldn’t be bowl eligible.

          Liked by 1 person

          • Derek

            So the answer to my first question is: “yes, the Alabama legislature can authorize a new car for football recruits and tell the ncaa to fuck off. And the Georgia legislature can reinstate Herschel.”

            I’m calling bullshit.

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        • CB

          The NCAA is made up of the schools they would punishing this hurting itself as an organization. It’s one thing to put a singular school on probation or even give them the death penalty, but eliminating athletics from all of the institutions within the most populated state in the union in basically cutting off your entire arm because you’re not happy with your new tattoo. In other words these are idle threats from the NCAA.

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  3. ATL Dawg

    This nicely highlights the fact that, when it comes down to it, the NCAA is the schools. The NCAA is not some 3rd party running wild and Mark Emmert is not some tyrant doing whatever he wants. The NCAA is the schools and Emmert is a stooge doing things the way the schools want him to do them. Think of Emmert as Roger Goodell, the NCAA as the NFL, and the schools as the individual NFL franchise owners.

    Here’s the roster of the NCAA Board of Governors if you’re interested:

    http://web1.ncaa.org/committees/committees_roster.jsp?CommitteeName=EXEC

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  4. Bias aside, sounds like the NCAA has a pretty strong case.

    My question is: is there any scenario in which professionalizing college sports does not ultimately lead to the end of college football and college basketball as we know it?

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    • The NCAA’s track record in antitrust cases isn’t too hot, bias aside.

      As to your question, student-athletes are already being paid, both above the table with COA stipends and below. Are you still watching college sports?

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      • 79Dawg

        The NCAA’s track record isn’t too hot in district court courtrooms in the Bay Area or the Ninth Circuit; on the other hand, the Ninth Circuit’s track record isn’t too hot (relatively speaking when compared to its sister circuits) at One First Street in DC either…. Will be interesting to see how things shake out once that finally happens!

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      • FlyingPeakDawg

        I’m eating the sausage…please quite working so hard to tell me how its made! nah nah nah nah nah…I’m not listening…

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  5. 69Dawg

    I for one hope they sue the biggest state in the union. Just think of the fun we will have reading the briefs and the friend of the court briefs. What if the State of California takes away the NCAA state tax exemption. One big bureaucracy duking it out with an even bigger bureaucracy. My brothers at the bar will make a mint. You got to love the effect the almighty dollar has on the so called educators.

    Liked by 1 person

    • 79Dawg

      Since the NCAA’s tax exemption is courtesy of the federal Internal Revenue Code, I can’t wait for California to try and take it away either… As an aside, to the extent the NCAA may no longer hold or sanction events in California in the future, there likely would be no nexus for California to tax any “income” or “profit.” And finally, to the extent many here seem to think California (or any other state, or the federal government) could suddenly swoop in and “tax” the NCAA without upending the laws applicable to lots of other non-profits (some of which you may even patronize and view as beneficial to our society), such a view is naïve at best and almost certainly unworkable from a legal perspective….

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  6. Dylan Dreyer's Booty

    These things move incrementally until there is a tipping point and all hell breaks loose. O’Bannon starts with one case, someone else does another, one state passes a law and others consider doing so, and eventually it gets resolved. WAAAAy back when UGA and OU sued the NCAA for television rights there were doomsayers then. Of course, the doomsayers were right because, well, ESPN, but I digress.

    My point is this: California can’t be stopped unless the NCAA wants to cut off a significant portion of its anatomy to rid itself of this horror. And even then they will have to cut off some more because other states will join in: ain’t no way Saban is going to let California players get paid for their image and his players don’t. Or Kirby. Or anyone outside of the Ivy League.

    And I ask this question: if we are concerned about any group aside from Congress regulating Interstate Commerce, then why can the NCAA create rules that do just that?

    The NCAA only has one legitimate goal here, and that is to try and maintain some fairness among the schools. If they want to do that, they need to try another tack.

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    • Harold Miller

      Great, so eventually it turns out the UGA ruined everything.

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      • Dylan Dreyer's Booty

        Oklahoma had something to do with it: the US Supreme Court case is styled as: NCAA v. Board of Regents of the University of Oklahoma.

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      • Dylan Dreyer's Booty

        I wouldn’t say it ruined everything, either. I hate shifting game times as much as anyone, but one of the stated justifications for their control of TV games was ‘to protect gate receipts’ for their institutions. Now I know attendance has declined recently around the country, but overall, since 1984 attendance is up, revenue is up, stadiums have expanded; in short their fears allegations were unfounded BS.

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  7. Benny D

    The fundamental injustice, as we (those who think players should be compensated more) is one of proportionality. Collectively, those who are generating a marketable product seem to be receiving a disproportionally small cut.

    Okay. The proposed solution everyone is up in arms about: let the players profit from their likeness, image, etc.

    My response: This still doesn’t solve the proportionality issue for all of the 80-90% of the players on the team who help everyday to make that product better, the folks who will never be stars, but who have just as important of a role in making. The current “compensation” solution proposal actually doesn’t in any way address the fact that the institutions (unless licensed or retailed merch is sold with that players’ image, likeness, etc. and they’re contractually obliged to pay a royalty to the play) are themselves not “SHARING” a grater proportion of their revenues with all the players on the team who constitute it.

    My suggestion: All member schools simply collectively bargain with a NCAAPA for tiered institutional compensation packages deferred till exit from institution, whether by injury, draft, exhaustion of eligibility, or graduation. And it carries over if a player transfers, since the packages are collectively bargained for and applied unilaterally.

    Allowing them to profit in the free market individually off of their likeness is a nice bonus for starts and even local heroes, and I think is certainly justifiable civilly and ethically, but at least the way I see it, if it were simply opened up and made permissible (with or without specific restrictions) I think financial exploitation of the student athlete is not solved one bit.

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  8. Former Fan

    I don’t see how California choosing to allow their athletes to market their likeness, name, etc. has anything to do with interstate commerce. The easy workaround is to make sure each business that wants to pay a player, have a brick and mortar building in the state of California. All the money stays in California and viola, no trade across state lines is occuring with the players.

    Personally, I think the NCAA would be foolish to bring this case. It might actually give a judge reason to give every college football player, etc. the same freedom California is giving to its players.

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  9. Harold Miller

    How would this work if said likeness of player comes from a great play that they made while playing outside of California?

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  10. Didn’t realize it was antitrust. I’m not a lawyer.

    As for currently, I still watch college sports. But collegiate athletes haven’t become professional yet. They receive a small semesterly cash allowance, which is much closer in nature to a book stipend or dining hall pass. They aren’t paid to play, which is a different dynamic that introduces value and performance into the equation. Once you start that, it’s a pro league and I think it materially disrupts college sports in all sorts of unforeseen ways.

    I’m not saying the endorsement part can’t be figured out. I have heard good ideas about how kids can keep money from their image/likeness in their family’s hands. I’m also not saying college players shouldn’t be paid. Just not sure how this gets addressed without turning college sports into something else.

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  11. Nashville West

    This is probably the least draconian version of what California could do. California could, within established law, declare that all college athletes in the state of California, including visiting teams, are employees under California wage and hour law. The athletes, at least while employed in California, would be subject to California minimum wage, currently $12 an hour, and overtime, time and 1/2 for all hours over 8 in a day and 40 in a week. In addition, the minimum work day pay is 4 hours pay if the normal day is 8 hours.

    State minimum wage laws and overtime laws are valid under the Commerce Clause of the Constitution. I think that this one will have a good chance of being upheld.

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