The Drake Group issued a strong statement today in support of Senate Bill 206, the “Fair Pay to Play Act,’ [1] currently making its way through legislative committees in the state of California. This legislative effort led by State Senators Nancy Skinner and Steven Bradford would allow athletes at every California post secondary educational institution, and every athletic association, conference, or other group or organization with authority over intercollegiate sports, to be financially compensated for the use of their name, image, or likeness (NILs) as long as there is no mention of the athletes’ college or university. The bill would prohibit the revocation of a student’s scholarship as a result of earning compensation or obtaining legal representation as authorized under these provisions. The Drake Group finds this “to be an excellent approach to solving almost a century-long issue of compensation of college athletes.”
Dr Fritz Polite, current president of The Drake Group, reiterated support for efforts like this going on in various states and at the federal level such as North Carolina Representative Mark Walker’s bill which would amend the definition of a qualified amateur sports organization in the tax code to remove the restriction on student-athletes using or being compensated for use of their name, image and likeness. [2]: Polite states, “The NCAA has created unreasonable pressure on non-profit institutions of higher education to pay salaries to their athletes because it has unfairly prohibited college athlete outside employment and denied athletes the right to exploit their own NILs separate from their college athletic programs. Non-athlete students who similarly excel in the performing arts do not have such employment or NIL restrictions. Members of the public often don’t realize that NCAA rules prohibit employment related to a college athlete’s athletic talent (e.g., running their own sports camps, providing individual instruction to others on a fee-for-lesson basis, etc.) or exercising the right to economically exploit their own names, images and likenesses (NIL) without using the name or affiliation with their colleges or universities. This is amplified by the fact that many of these athletes are at the height of their personal marketability and they should be able to capitalize on that.”
The Drake Group noted that “predictably, the NCAA has responded with fear mongering and hyperbole. NCAA president Mark Emmert stated in a recent letter to Skinner and Bradford that California institutions could be banned from NCAA competition should this law be passed unilaterally and that the NCAA is the proper organization to address this issue, not the government. The NCAA’s stance of desiring to fix this problem themselves falls on deaf ears considering this bill has a three year lag time until implementation should it become law. This gives the NCAA plenty of time to figure this out for all member institutions without being overly restrictive concerning the athlete’s right to control their own body-an absolute right other college students have as a matter of course. Challenging California is a bad idea and will backfire should the NCAA attempt to carry out its threats. Legally the NCAA doesn’t have much to stand on with regard to challenging state and federal laws. CUNY law professor Marc Edelman said if the NCAA penalizes California for passing the bill it would constitute wage fixing and a group boycott, putting the NCAA in clear violation of U.S. anti-trust laws. In other words the NCAA is only hurting themselves by attempting to prevent what is the right thing to do.
“Any intimation that this would damage college athletics and cannot be controlled is an NCAA scare tactic fueled by the fear of loss of control over the athlete. The Drake Group believes that potential college athlete abuse of NIL rights can be easily controlled by making such employment transparent rather than the current overly restrictive system that encourages under the table payments from shoe companies and others. If the NCAA allowed NIL payments or any outside employment compensation short of playing professional sports or competing for prize money, it could easily require that: (1) athletes report their outside employment to their institutions, (2) employment compensation be consistent with market rates, (3) outside employment not be arranged by the institution or representatives of its athletics’ interests and (4) athlete does not use the name, marks or affiliation with the collegiate institution.
“Even the courts have recognized that the NCAA’s amateur status rules limiting outside employment and compensation are bogus. The NCAA continues to demonstrate that controlling the cost of the college athlete labor force and maintaining its college sports product monopoly is more important than protecting the health and well-being of college athletes and academic integrity of higher education institutions. It is well past the time when Congress and state legislatures should intercede and there is more that can be accomplished because the NCAA cannot be relied on to make these changes on its own. History tells us only outside pressure from reform minded people like Senators Skinner and Bradford will get the ball moving in the right direction to give the college athlete the rights they deserve.”
[1] See text of California Senate Bill 206 at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB206
[2] See Drake Group press release at https://www.thedrakegroup.org/positions-issues/press-releases and also https://www.newsobserver.com/sports/article227181209.html#storylink=cpy>
