The NCAA strenuously objects.

From the Alston arguments in front of the 9th Circuit yesterday, this is hilarious.

Judge Smith also pressed Waxman on whether he thinks proposed state and federal laws could impact the case, pointing to California’s Fair Pay to Play Act, which allows compensation for a college athlete’s name, image and likeness, or NIL. The new law was signed last year, but doesn’t go into effect until 2023.

The judge said allowing athletes to get paid millions of dollars for their NIL could “completely undercut” the NCAA’s defenses.

But the attorney replied that the NCAA thinks that those statutes are “flatly inconsistent” with its principles of amateurism and the O’Bannon precedent.  Waxman added that they think that the state’s Fair Pay to Play Act is unconstitutional and violates the dormant commerce clause.

If you say so, man.

(h/t)

9 Comments

Filed under See You In Court, The NCAA

9 responses to “The NCAA strenuously objects.

  1. spur21

    Some arguments are truly mind boggling.

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  2. Dylan Dreyer's Booty

    The Dormant Commerce Clause:
    In challenging a law because it violates the dormant Commerce Clause, the challenger argues that while the federal government has been silent in the area (meaning that the state law or municipal ordinance is not preempted by federal law), the state law (or municipal ordinance) places an unreasonable burden on out-of-state or interstate commerce.

    Well, let’s see, we have (or have had) players from Florida, South Carolina, North Carolina, Alabama, California, Texas, Oklahoma, Louisiana, New York, New Jersey, Massachusetts, Pennslyvania, Tennessee, Mississippi, Maryland Washington, Nevada, Iowa, Georgia, and maybe some others I can’t remember.

    I think we’re okay on that point. 🙂

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  3. Huntindawg

    How about this: “We don’t care what the state law is. That’s completely irrelevant. This is our organization, and schools can choose to be part of our organization or choose to opt out. If a school chooses to pay its players or allow them to be paid, they are de facto opting out of the NCAA, and will not be eligible to play in NCAA events. That’s their choice.”

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    • Dylan Dreyer's Booty

      That would be interesting. I think they are afraid to do that, but who knows?

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    • I guess I’m missing something here, Huntin. What happens if a school says it’s not going to comply with state law because it doesn’t want to be ruled ineligible by the NCAA?

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      • Huntindawg

        Wait a minute – do the state laws REQUIRE that schools allow their athletes to profit from NIL? Or do the state laws just allow student athletes to profit from NIL? The distinction being that while the state law may allow athletes to profit, the state law doesn’t require the school to keep them on the football team or play them in a sanctioned NCAA game.

        So maybe it’s me that’s missing something. I’m looking forward to checking back later to find out. (GAS method of research is the best method. Go Ask Someone.)

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        • The state laws bar schools from preventing college athletes from monetizing their NIL rights.

          So, schools couldn’t say to the state, “screw you”, but could to athletes. In other words, refuse to have kids making money off NIL on their rosters. That should do wonders for competition.

          If you’re suggesting that all schools band together and refuse to let every kid doing that play, congratulations. You just handed the Alston attorneys another winning antitrust case.

          Oh, and one other thing — most of these schools are state supported. You really think they’re all that keen to give the finger to the politicians who just enacted the law?

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  4. Huntindawg

    Ok I’m back 11.59 pm. Interesting discussion. Probably cause I like to hear myself talk.

    Couldn’t UF, for example, just say “hey mr politician, your law is really cool (and will likely win you some votes). However, if we keep kids on the football team that get paid, the NCAA won’t let us go to the Sugar Bowl.” So. . . They just don’t allow their kids to monetize.

    And why would the schools have to band together? Couldn’t they just say they are complying with the rules of the sport?

    I think at this point we are discussing politics more than law. It does seem like public sentiment is pushing it towards full on professional college athletics.

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    • Well, speaking of Florida, here’s the key language in the bill the Florida Senate just passed:

      A postsecondary educational institution may not adopt
      85 or maintain a contract, rule, regulation, standard, or other
      86 requirement that prevents or unduly restricts an intercollegiate
      87 athlete from earning compensation for the use of her or his
      88 name, image, or likeness. Earning such compensation may not
      89 affect the intercollegiate athlete’s grant-in-aid or athletic
      90 eligibility.

      That appears to be a prohibition on schools, so I don’t think UF could do what you suggest.

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