NCAA threatens to cut ties with California over “unconstitutional” bill

Senate Bill 206—known in more memorable terms as the Fair Pay to Play Act—would “make it illegal for California schools to take away an athlete’s scholarship or eligibility as punishment for accepting endorsement money” starting in 2023 (unless said endorsement is in direct conflict with that school’s own sponsorships).

The bill is actually intimately tied to Berkeley and was arguably born out of this city as it was proposed by State Senator Nancy Skinner, who is based in Berkeley.

The bill previously passed through the State Assembly and was approved by the State Senate on Wednesday.

Republican Assemblyman Kevin Kiley said Wednesday’s vote was “a loud and clear message to the NCAA.” Several Republican senators noted they had planned to vote against the bill but changed their minds after listening to the debate and, in some cases, intense lobbying from their children.

”This is one of those situations where I think we need to blaze the trail,” said Republican Sen. Jeff Stone, who said his daughter played water polo in college.

Schoolhouse Rock! would have you know that the next step lies with Governor Gavin Newsom, who has 30 days to sign this bill into law—or not.

The NCAA has fired back in a letter to Newsom, urging him to reject the bill on the grounds that is will offer an unfair recruiting advantage to California schools and that it is outright “unconstitutional”.

California Senate Bill 206 would upend [the balance between schools]. 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. These outcomes are untenable and would negatively impact more than 24,000 California student-athletes across three divisions.

...

The NCAA continues to focus on the best interests of all student-athletes nationwide. NCAA member schools already are working on changing rules for all student-athletes to appropriately use their name, image and likeness in accordance with our values — but not pay them to play. The NCAA has consistently stood by its belief that student-athletes are students first, and they should not be employees of the university.

...

We urge the state of California to reconsider this harmful and, we believe, unconstitutional bill and hope the state will be a constructive partner in our efforts to develop a fair name, image and likeness approach for all 50 states.

For more regarding the constitutionality, ESPN reported:

Donald Remy, the NCAA’s chief legal officer, told the Associated Press he believes the bill is unconstitutional because it would inappropriately affect interstate commerce. Skinner disagreed with Remy’s assessment and said legislators worked with experts to construct a bill that would meet constitutional standards.

”Numerous legal scholars assert that SB 206 is constitutional and that an NCAA ban of California colleges from championship competition is a clear violation of federal antitrust law,” Skinner said in a statement Wednesday. “The NCAA has repeatedly lost antitrust cases in courts throughout the nation. As a result, threats are their primary weapon.”

As for alternatives, FootballScoops.com proposed the Olympic model, in which schools themselves are not allowed to pay players, but endorsements from third parties are allowed. The NCAA claims that they are “open to updating its rules to better fit the 21st century”. Our conference—the Pac-12—is recommending that the NCAA should be given time to make their own proposals and then have this discussion.

It’s tough to speculate on what would happen if the NCAA were to cut off all California schools. What would elite California-based students do if they didn’t want to leave the state? Would there be enough push—from top players who want to profit off their image—to make a California-only model successful? And how would this affect Olympic sports that would be unable to participate in the NCAA, but far less likely to get endorsement deals?