Editor’s note: This story has been updated to reflect the signing of Fair Pay to Play Act.
SALT LAKE CITY — In December 2010, the NCAA suspended six Ohio State football players — headlined by quarterback Terrelle Pryor — for an incident eventually dubbed “Tattoogate.” The players, it was revealed, had exchanged rings, trophies, patches, jerseys and autographs for free/discounted tattoos and cash.
Notice the diction: It wasn’t their rings, trophies, patches, jerseys and autographs. Although they earned the memorabilia and/or created its value, their arrangement conflicted with NCAA amateurism bylaws, which prohibit a player from profiting off his or her name, image and likeness. Five of them were suspended for five games; one was suspended for one game. And Tim Nevius, a young NCAA infractions investigator, was partially responsible for the discipline.
Back then, he believed in the mission of NCAA enforcement — in preserving integrity. He was a white blood cell in the body of college sports, eliminating infections such as improper payments, academic fraud and any other ailments seeking to undermine competitive equity. But his faith crumbled when he found himself enforcing a rule with questionable goals.
“The fact that they were punished for that was, I thought, ridiculous,” he said of the Ohio State players. “Especially because they legitimately believed the items they were selling or trading were their own to do with what they wished.”
One particular interview sledgehammered his thinking. The player in question was expected to be a big-time star. But he’d been injured, and despite playing at a juggernaut like Ohio State, his football career fizzled. When Nevius met him, he was working at Subway in a “rougher area” near Columbus, where he lived with his girlfriend and their 2-year-old son. Nevius explored the usual points: Why’d he take improper benefits? Who gave them to him? How was it arranged? The player’s son scooted around nearby on a toy truck.
With his questions finished, Nevius prepared to leave. A tear painted the player’s cheek. He’s only trying, Nevius thought, to make ends meet.
“I just felt sick when I left there,” he said, “thinking, ‘What are we doing? What’s our real purpose and our mission in enforcing these rules of amateurism?’”
A bill signed by California Gov. Gavin Newsom on Monday — following unanimous support in the state legislature — would alleviate some of Nevius’ concerns. SB 206 — “The Fair Pay to Play Act” — is deceptively named. It doesn’t address direct payment of college athletes. But it does forbid California universities from upholding any regulation that prohibits athletes from earning compensation from their name, image and likeness. In short, California schools — starting in 2023 — will no longer be allowed to enforce NCAA bylaws around college athlete use of name, image and likeness — a seismic shift in the traditional understanding of amateurism in college athletics.
It’s unclear exactly how many athletes will benefit, but the law opens a range of possibilities (in California), from million-dollar apparel endorsements for superstars like Zion Williamson to a volleyball team’s backup libero profiting off social media advertising revenue or high school coaching clinics.
Newsom signed the much-anticipated bill alongside LeBron James. The signing was hosted by Uninterrupted, an “athlete empowerment brand” co-founded by James. In a video he shared, Newsom was asked what this bill will change.
“It’s going to initiate dozens of other states to introduce similar legislation,” he said. Lawmakers in Florida, Colorado and New York, among others, have proposed or are planning to propose similar laws.
Newsom also said this law balances the relationship between college athletes and their institutions — a re-calibration, he said, is long overdue.
“This is the No. 1 reason we created this platform,” James added. “To be able to have moments like this.”
Newsom’s signature gives the NCAA two options over the next three-plus years: adjust its policies regarding name, image and likeness, or — much more likely — challenge the law in federal court. It’s already hinted at the latter.
In a public letter addressed to Newsom before he signed, the NCAA Board of Governors called the bill “harmful” and “unconstitutional.”
“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,” it reads in part. “These outcomes are untenable and would negatively impact more than 24,000 California student-athletes across three divisions.”
In a statement released after the signing, the NCAA agreed that change is needed but insisted it can only happen at a national level and from within the organization via the “NCAA’s rules-making process,” rather than via new laws.
Regardless of Newsom’s signature, questions — ethical, legal and practical — still abound. One is whether the NCAA’s “working group” assembled earlier this year to address name, image and likeness concerns will create substantive change. As reported by 247Sports, there’s little optimism. But little is not none, says Ohio University sports administration professor David Ridpath. He believes it’s possible, largely thanks to efforts like the California legislation.
“It could be,” he said of the working group making serious changes. “But they’re doing it at the point of a bayonet.”
Detractors and disadvantages
Tim Tebow has emerged as the face of opposition to SB 206. In an appearance on ESPN’s “First Take” on Sept. 13, Tebow channeled the energy of his legendary “The Promise” speech in an impassioned denunciation of the legislation. “I feel like I have a little credibility and knowledge about this,” he began. After all, his No. 15 jersey was a huge seller during his time at the University of Florida, and he didn’t make any money from it.
“Nor did I want to,” he added. “Because I knew going into college what it was all about.”
In Tebow’s mind, playing for the Gators was about supporting his team and his “dream school,” not enriching himself in any way. His view has remained somewhat consistent since 2008, when he told the Orlando Sentinel that paying players for jersey sales is a “touchy subject” and something that would be hard to do for one player alone.
In the “First Take” interview, he also lamented how, in his view, the culture surrounding college sports has changed. “It’s not about us; it’s not about we; it’s just about me,” he said. “And yes, I know we live in a selfish culture where it’s all about us, but we’re just adding and piling onto that.”
He also said paying athletes — even indirectly by allowing them to profit from their name, image and likeness — would diminish the passion that makes college sports and college football special. “You’re taking that away so that young kids can earn a dollar,” he said. “And that’s just not where I feel like college football needs to go.”
Washington State football coach Mike Leach also criticized the legislation, although he didn’t offer much specificity about his gripe aside from urging California to focus on its infrastructure instead.
Separate from Tebow’s thesis of undermining the spirit of college athletics, there’s the more procedural argument of the NCAA: If athletes at California schools are allowed this new revenue stream, it would create an unfair recruiting advantage and undermine the competitive integrity of college sports.
This, per Marquette University sports law professor Matthew Mitten, presents a serious problem.
“The bottom line is there should be a national solution instead of a state-by-state solution,” he said. “It’s just not workable.”
Supporters and benefits
LeBron James was the face of support for SB 206 even before watching Newsom sign it, but he wasn’t not alone. Draymond Green also voiced support. And Dez Bryant expressed frustration with Tim Tebow, as did many others. The chorus of backing from athletes and in mainstream media has been deafening in comparison to the opposition.
Nevius — the former NCAA investigator who earlier this year started the College Athlete Advocacy Initiative — called Tebow’s comments “not only unfortunate, but illogical.”
“He doesn’t provide any factual evidence to support his claims that the reason college sports are more popular than professional sports is because the athletes aren’t paid,” he said. “Not only is that incorrect, but the NCAA has attempted to make those arguments in court now for many, many years. And those arguments have been shut down.”
He also attacked Tebow’s view that college athletes profiting encourages selfishness. Tebow’s “rant,” he said, is more emblematic of selfishness than even the mightiest potential college athlete endorsement deal.
“I think it’s selfish on his part to suggest that players shouldn’t be able to capitalize on their tremendous value and their own skills,” Nevius said. “For a lot of these athletes, this is the difference between earning a little extra income and just being able to make ends meet. It’s a very privileged position for him to take.”
Nevius also argued that although some have suggested the bill would only benefit the fraction of college athletes famous enough to secure sneaker deals or apparel endorsements, the bill accomplishes more. He pointed to several examples, starting with former Central Florida kickoff specialist Donald De La Haye.
In 2017, UCF ruled De La Haye ineligible because his YouTube channel, which had garnered tens of thousands of subscribers, was providing advertising revenue. De La Haye refused to stop posting videos.
“All I wanted to do was keep inspiring and motivating others through my content,” he wrote in a tweet. “Didn’t know it would cost me my education.”
Nevius also pointed to Olympic gold medalist swimmer Katie Ledecky, who left Stanford’s swimming program two years early to pursue endorsements and professional opportunities. And Katelyn Ohashi, the UCLA gymnast whose floor routine captivated a nation and garnered more than 60 million views on UCLA’s YouTube channel while she was unable to capitalize on her “extremely popular” name, image and likeness. The bill could also help athletes, Nevius said, who wish to start GoFundMe campaigns or hold for-profit clinics at their high schools.
“This goes far beyond big sneaker deals for the top athletes,” he said. “This relates to the way that anyone can use their name, image and likeness, including in generating extra income through social media platforms, through self-employment and a variety of other means.”
That, said Ridpath, is the essence of why this legislation is important: It gives college athletes access to a “a civil right that all other people have,” and if the NCAA adjusts its rules appropriately, he said, there’s no reason it should create competitive imbalance or alter the spirit of college sports.
“The NCAA just needs to get with the program,” he added. “This is going to happen.”
The legal hurdles ahead
Lawyers disagree about the NCAA’s chances to triumph in court. But they largely agree on its likeliest legal route (though there potentially are others).
The NCAA seems poised to challenge using the “dormant commerce clause,” a legal doctrine that forbids states from discriminating against or unduly burdening interstate commerce. SB 206, it could be argued, is an attempt by California to tell the NCAA — a national trade organization — how to conduct its affairs. If the bill is signed, the NCAA could seek an injunction on the grounds that the state of California lacks the proper authority, according to Barbara Osborne, a lawyer and professor of sports administration at the University of North Carolina, Chapel Hill.
“I think they would win,” Osborne said of the NCAA. “I think all the legal precedents support them being able to do that.”
The NCAA successfully used the dormant commerce clause before, in 1993’s NCAA v. Miller case.
“That’s the precedent,” Mitten said. “The same rationale may well apply here.”
But some legal minds disagree. Marc Edelman, a law professor specializing in sports and antitrust law at Baruch College in New York, called the dormant commerce clause problem “a false argument.” He compared SB 206 to state minimum wage laws: even if a company operates in multiple states, it still has to follow minimum wage laws state by state.
San Diego-based attorney Len Simon, who wrote a position paper addressed to the NCAA about the use of college athletes’ names, images and likenesses, also noted that the Nevada law struck down in Miller was much more extreme in its demands of the NCAA than SB 206.
And Erwin Chemerinsky, dean of the UC Berkeley School of Law and a renowned constitutional law scholar, wrote in an email that he believes SB 206 will avoid constitutional problems. The California legislation, he explained, doesn’t discriminate between “regulating in-state and out-of-state entities.” Therefore, because of a precedent established in the 1970 Supreme Court case Pike v. Bruce Church, SB 206 would be unconstitutional only if the burden on interstate commerce outweighs the benefits of the law.
“The benefits are large in allowing athletes to benefit from their name and likeness,” he wrote. “I do not see the burden on interstate commerce.”
But what would happen if SB 206 triumphs over the NCAA’s dormant commerce clause challenge? At that point, the NCAA could either adjust its rules to accommodate the California law, or it could sanction California schools.
Osborne doesn’t appreciate terms like “sanction,” “punish” or “retaliate against.” The NCAA, in her view, is only following its rules if it bans California schools from championships, as President Mark Emmert suggested in June, or — most severely — if it severs its relationship with California schools entirely. At minimum, Osborne added, California is pushing the NCAA to change its rules. But at worst, it’s risking its schools’ eligibility.
Simon believed it unlikely that the NCAA would take such drastic action — for many reasons, largely centering on the money to be made in California — but agreed it would be legally justified in doing so. “If the NCAA really can’t abide by that,” he said, “it can kick out the California schools.”
Edelman believes this would be a violation of federal antitrust law.
“If the NCAA were to move to remove California schools based upon these schools’ willingness to allow athletes to control their own name, image and likeness, the reasonable response by the state of California — or any member school within the state of California — would be to file an antitrust lawsuit against the NCAA,” he said. “This is a case that I believe would more likely than not be decided in favor of California and against the NCAA.”
Mitten isn’t so sure, based on O’Bannon v. NCAA — the antitrust lawsuit best known for ending the NCAA football video game franchise. In his understanding, the NCAA is within its legal rights to limit compensation to education-related expenses to preserve its understanding of amateurism. “I think O’Bannon would preclude a successful antitrust challenge,” he said.
Edelman disagreed for three reasons. First, O’Bannon does not address “an attempt to ban member schools that allow their college athletes greater financial rights.” Second, O’Bannon, “as a matter of law,” didn’t outlaw paying college athletes. And third, O’Bannon relates to direct payments from universities to athletes, not third-party compensation.
“The legal holding of O’Bannon, especially when read alongside Board of Regents, is overwhelmingly favorable to the claim that it would violate antitrust law for the NCAA to ban member colleges that allow their athletes to sell their names, images and likenesses for the endorsement of products,” Edelman wrote in an email. “I would be hard pressed to reach any alternative conclusion.”
But Mitten’s greatest concern as a sports lawyer — that NCAA competitions remain as fair as possible — would likely remain intact regardless. He believes trying to address name, image and likeness rights on a state-by-state basis would be impossible. To preserve an equitable version of college sports, something must change beyond the California law.
The clock begins ticking toward a solution as soon as Newsom signs.
What happens next?
Before diving into where college sports will go, a lesson in where they’ve been is merited, and it comes courtesy of Victoria Jackson, a professor of sports history and former 10,000-meter national champion at Arizona State. The organization that eventually became the NCAA, she explained, began in the early 20th century. Facing a string of deaths on the football field — along with abuse, violence, illicit payments, fraudulent student-athletes and other problems — President Theodore Roosevelt led efforts to create a safer, more regulated version of football at America’s colleges through White House conferences that resulted in the creation of the Intercollegiate Athletic Association of the United States.
In 1910, this organization became the NCAA. And for the first half-century of its existence, there were no oversight or enforcement mechanisms; the group existed to encourage discussion, create rules and, eventually, stage championships.
In post-World War II America, fertilized by a thriving economy, the advent of commercial air travel and the growing ubiquity of television, college football flourished. This, Jackson explained, was the beginning of the endorsement and commercial era of college sports. And thanks to Walter Byers, the NCAA’s first executive director, the organization introduced legitimate enforcement of its rules. Under Byers’ leadership from 1951 to 1988, Jackson said, the NCAA became what we recognize today.
In the 1980s, schools started signing their own television deals, and endorsements and sponsorships exploded. The NCAA was on its way to becoming the $14-billion juggernaut of our time. But three things, Jackson said, happened in the early 2010s that threatened to stall business progress.
First, in October 2011, The Atlantic published Taylor Branch’s landmark piece, “The Shame of College Sports,” which highlighted the injustice of schools enriching themselves from free athlete labor. This story, Jackson said, started to penetrate the collective American consciousness with the idea that something might be amiss in college sports. Second, O’Bannon showed that the previously untouchable NCAA could be immune to lawsuits while gaining widespread media recognition. And third, former Northwestern quarterback Kain Colter led an unsuccessful effort to unionize his team.
“Kain Colter was saying he wanted the rights and protections that were deserved,” Jackson said. “He forced people to step back and question the system.”
And in the wake of those three events, question they have. Which brings us to the point of this history lecture: The NCAA has evolved over its more than 100 years of existence, and right now, it appears positioned on a precarious ledge. Change is brewing, in some form or another. In the age of social media, the public perception of the NCAA is increasingly hostile. More than ever, observers are asking questions about how the business model of college sports has evolved without enough regard for sharing the spoils with the athletes. The questions are likely to intensify. Something must happen. The question is what.
Putting SB 206 aside, there are many opinions on areas the NCAA needs to change. Simon, for example, wrote an op-ed in the San Francisco Chronicle urging the NCAA to allow college athletes to profit from endorsements while highlighting the pitfalls of direct payments. Nevius goes further, encouraging not only a pay-for-play discussion, but also a more general conversation about how to best achieve equity in areas like healthcare and proper legal representation.
“I do think that’s an important thing that has to be discussed — particularly given the amount of revenue that’s generated off the backs of these young people,” he said of paying college athletes directly. “But it goes far beyond that.”
Meanwhile, lawmakers in Washington and South Carolina introduced legislation similar to California’s even before Newsom signed SB 206. And U.S. Rep. Mark Walker, a North Carolina Republican, introduced a similar bill at the federal level: The Student-Athlete Equity Act. The federal legislation would strip the NCAA of its tax-exempt status unless it allowed college athletes to profit from their names, images and likenesses. Introduced in March, the bill hasn’t made progress in the House Committee on Ways and Means, but a spokesperson for Walker’s office told the Deseret News he expects some movement in the wake of California’s legislation.
“Dozens” of California representatives, the spokesperson added, have reached out to Walker’s office in recent days, and Walker’s office is hoping to lead events in the Washington, D.C., area in the coming weeks to build support and generate ideas. His hope, he said, is that the NCAA decides to work with Congress and embrace change at the federal level, rather than leaving it to individual states.
“They might want to stop the bleeding,” he said.
In the aftermath of Newsom signing SB 206, Walker tweeted that the NCAA’s contention of chaos resulting if this issue is addressed on a state-by-state basis is valid, and he’s ready to offer a federal solution.
“DM me,” he wrote.
Since the California law doesn’t apply until 2023, Nevius said the NCAA has an opportunity.
“There’s plenty of time for the NCAA to adjust its rules and start to recognize that this is something that’s happening and that’s moving in this direction,” he said, “and they need to adjust.”
If they don’t, he added, he believes the NCAA’s “fearmongering” about how such laws could fundamentally change the nature of college sports will backfire — that the organization’s inaction when facing a swelling tide of opposition will lead to its demise.
“If the NCAA refuses to adjust its rules and afford basic fairness to the athletes, the system will collapse,” he said. “The system will not continue as we know it. The anger and frustration is growing.”