Jimmy Cao
On September 30, 2019, California Governor Gavin Newson officially signed the Fair Pay to Play Act, which prohibits California colleges from preventing student-athletes from profiting from their “name, image or likeness.”[1] This is a landmark moment in collegiate athletics. Current NCAA regulations prohibit student-athletes from receiving such compensation.[2] While the Act does not come into effect until 2023,[3] this historic event occurs in the middle of a national debate—is the NCAA’s current policy against student-athlete compensation unfair to the student-athletes who contribute so much value to their respective schools and the NCAA?
Many arguments in favor of the NCAA’s current policy prohibiting student-athlete compensation focus on the benefits these student-athletes receive under the current regime. Student-athletes already receive free college education, institutional coaching and training, and a platform to display their talents to a nationwide audience, all of which can be considered sufficient consideration for their athletic contributions. Other arguments focus on the integrity of amateur athletics. Paying student-athletes would turn college sports into a commodity, thereby destroying the passion and spirit of amateur athletics.
On the other side of the debate, arguments against the NCAA’s current policy focus on unfairness and hypocrisy. As the argument goes, it is unjust to deny student-athletes compensation while, at the same time, to allow the NCAA and the universities to exploit these athletes and enjoy the fruits of their labor. This argument often emphasizes the disparity in bargaining power between the NCAA and the student-athletes. Mirroring an adhesion contract, the student-athletes are confronted with a “take-it-or-leave-it” situation in which they can either accept the forfeiture of compensation or walk away from college sports altogether. This unfairness is compounded when it involves student-athletes coming from socioeconomically disadvantaged backgrounds. NBA superstar Lebron James—an avid supporter of California’s act[4]—famously forwent college altogether and has since criticized the NCAA’s policy.[5]
Despite the unfairness of some aspects of the NCAA’s current policy, the Fair Pay to Play might actually introduce an element of unfairness to some student-athletes. The bill is likely to benefit only the “upper class” of student-athletes (those blue-chip prospects with multi-million-dollar contracts awaiting them after college) while ignoring the plight of the “middle” and “lower” class student-athletes. The latter typically do not, and likely will never, profit from their “name, image or likeness.” If California schools can attract all of the future-pros, what’s left for the homegrown Average Joes?
Notwithstanding the ethical arguments against it, the NCAA’s policy also implicates antitrust concerns. Most notably, in a challenge brought by a group of former college athletes against the NCAA’s policies, the Ninth Circuit recently held that the NCAA’s amateurism rules are not exempt from antitrust scrutiny, stating that “the NCAA is not above the antitrust laws.”[6] However, the Ninth Circuit limited its holding to simply require the NCAA to “permit its schools to provide up to the cost of attendance of their student athletes,” as “[the Sherman Act] does not require more.”[7]
Whatever the legal status of the NCAA’s amateurism policies, the Fair Pay to Play Act will undoubtedly disrupt the current status quo. By offering student-athletes a viable opportunity to both compete athletically and earn money, the Act introduces California schools as potential “competitors” with the NCAA for top-tier student-athletes. It remains to be seen how the NCAA will react to the emergence of this new threat to its market omnipotence.
[1] Allen Kim, California Just Passed a Law that Allows College Athletes to Get Paid, CNN.com (Sept. 30, 2019), https://perma.cc/B22D-PGXC.
[2] Id. (noting that, with the passage of the Act, “California state law is at odds with the policies of the NCAA”).
[3] Id.
[4] Ben Golliver, Lebron James Continues Fight Against NCAA, Announcing Support of Fair Pay to Play Act, Wash. Post (Sept. 30, 2019), https://perma.cc/3PF4-KFTN.
[5] Id. (“Me and my mom, we didn’t have anything. We wouldn’t have been able to benefit at all from it. The university would have been able to capitalize on everything.”).
[6] O’Bannon v. National Collegiate Athletic Ass’n, 802 F.3d 1049, 1079 (9th Cir. 2015).
[7] Id.