A state law allowing athletes to profit on their name, image, and likeness has sparked similar legislation across the countryBy Tyler Tynes Oct 11, 2019, 6:55am EDT
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NancyNancy Skinner remembers listening to a lecture by the esteemed sociologist and civil rights activist Harry Edwards when she was a student at the University of California, Berkeley. Edwards told tales of how black athletes discussed boycotting the 1968 Olympics to protest racism in America. One of those athletes was Kareem Abdul-Jabbar, Skinner’s favorite basketball player and an outspoken critic of the NCAA. As Skinner embarked on a political career in the Bay Area, first as a Berkeley City Council member, she often wondered how an economic model built on denying athletes a share of the profits they generate had survived for so long.
“I would say, for a good number of decades, I really viewed this issue as primarily an issue of civil rights and exploitation of black student-athletes,” she tells me.
In 2015, Skinner met Andy Schwarz, an antitrust economist and a critic of the NCAA, at a Rotary Club event in Oakland. Skinner was preparing a run for the state Senate seat representing California’s 9th District and asked Schwarz whether there was a way for a state legislator to create a more equitable environment for college athletes. Schwarz said it was possible.
Skinner won the election in 2016 and took office the following year. In February, after two years of research and consulting with athletes and advocates, she introduced Senate Bill 206, the “Fair Pay to Play Act,” in the California State Senate. The law prevents universities from punishing athletes for being paid for the use of their name, image, and likeness (NIL) and allows athletes to sign with licensed agents. The bill, which easily passed the Legislature and was signed by the governor, is scheduled to go into effect in January 2023. It’s a significant piece of policymaking, but it doesn’t achieve everything Skinner wanted. It falls short of her ultimate ambition of letting athletes earn a share of the revenues they help generate in the multibillion-dollar college sports industry.
“I’ll be honest, originally I wanted to pay student-athletes,” Skinner admits. But allowing athletes to profit from their NIL, she says, was the most logical, achievable, and cost-effective legislative action, and would “not really have any direct costs on the colleges themselves,” she says.
The bill is a symbolic achievement, but it does not, as its critics suggest, upend the current system. Athletes, especially basketball and football players, will finally have the right to earn money on their NIL, but the bill doesn’t create any mechanisms that would allow them to profit from their labor. It places the onus on those same athletes to find the money—through endorsement deals, for instance. Still, it’s important progress and a corrective measure in a structure that prevents players from earning any above-the-table income.
“SB 206 addresses this civil rights issue of today, which is about fairness and equity,” state Senator Steven Bradford, Skinner’s cosponsor on the bill, said in a statement. “Our colleges and universities should no longer treat student-athletes as chattel, but as the valued individuals they are.”
The bill passed last month by a 39-0-1 vote in the state Senate and 73-0-6 in the Assembly, but Skinner says there was strong opposition. In July, university athletic directors and administrators voiced their displeasure during committee hearings, arguing that the bill could lead to schools being expelled from the NCAA. Skinner says some of her colleagues resisted her when she was gathering support for the bill.“For a good number of decades, I really viewed this issue as primarily an issue of civil rights and exploitation of black student-athletes.” —Nancy Skinner
“To be perfectly blunt,” she says, “had you asked me in March if I thought that that bill would end up being [a] unanimous bill, I would’ve told you, ‘Never, no way.’” Skinner also worried that California Governor Gavin Newsom would veto it. “We did know that the colleges were really increasing their pressure on him,” Skinner says. “There was a full-court press on the governor to get him to veto the bill.”
Newsom signed the bill to much national fanfare, explaining his decision on LeBron James’s HBO show The Shop.Sitting in a barber’s chair alongside James, Newsom said, “I don’t want to say this is checkmate, but this is a major problem for the NCAA. It’s going to change college sports for the better by having now the interests, finally, of the athletes on par with the interests of the institution.” Newsome believes he’s rebalancing the scales of power, that California is the leader in what will become a “national movement” of disruption.
In a statement, the NCAA said that it “agrees changes are needed to continue to support student-athletes, but improvement needs to happen on a national level through the NCAA’s rules-making process.” Pac-12 commissioner Larry Scott said it would “lead to the professionalization of college sports and many unintended consequences.” Other California schools, like Stanford and Skinner’s alma mater, Cal, stressed the need for holistic changes to NCAA bylaws to keep the playing field fair. Gene Smith, Ohio State’s athletic director, said that if the bill stayed the same by its implementation in 2023, he would stop scheduling games against California schools.
In the weeks after the passage of SB 206, legislators in at least nine states have started preparing similar bills. In Congress, Ohio Representative Anthony Gonzalez, a Republican and a former Buckeyes wide receiver and NFL first-round draft pick, is proposing legislation to allow athletes to earn endorsement money. His measure comes after a similar proposal from North Carolina Representative Mark Walker, also a Republican, who proposed a bill earlier this year to amend the tax law to allow third parties to play players. Connecticut Senator Chris Murphy, a Democrat, said he is working on his own legislation. Democratic presidential candidate Cory Booker, who played football at Stanford, announced a sweeping plan this week to provide federal oversight to college sports.
In an interview last week with The Indianapolis Star, NCAA president Mark Emmert repeated the familiar rhetoric of amateurism’s staunchest defenders. “The biggest worry is that when you have complete unfettered licensing agreements or unfettered endorsement deals, the model of college athletics is negligible at best and maybe doesn’t even exist.”
Last week, Seton Hall University pollsters conducted a national survey of 714 Americans and found that 60 percent of respondents were in favor of athletes being paid for their NIL, with 32 percent rejecting it. The disparity increased along age lines: 80 percent of 18- to 29-year-olds were in favor, while those 60 and over were split. California’s bill has created a national momentum that the NCAA will find difficult to contain. The groundwork, at least, has been laid.
“This is a tidal wave, and what’s clear is the ball’s in NCAA’s court now,” Skinner says. “They have the power to give this right to every student-athlete across the entire U.S., and they should, and then there would be no arguments around one state having an advantage over another state. But if they don’t, then I think we’re going to continue to see states acting just as California has.”
In 1995, UCLA star linebacker Donnie Edwards was suspended for one game and ordered to pay restitution of $150 to a charity after an NCAA investigation determined that an agent had purchased groceries for him. According to the Los Angeles Times, Edwards said he didn’t know who had paid for the groceries. He had recently told an interviewer “how hard it is for student-athletes to buy enough food under the current scholarship system, and because we can’t work during the year.” After his suspension was handed down, Edwards said, “I want to stress that I feel I did not do anything wrong.
It stunned his teammate and fellow linebacker Ramogi Huma that college players could be punished over food. Edwards’s suspension was the catalyst for Huma’s ideology about the hardship that amateurism causes college athletes. For more than two decades, Huma has been one of the nation’s leading advocates of changing NCAA policy. He launched an advocacy group in 2001 called the Collegiate Athletes Players Association, saying at the time that they “plan on being a permanent fixture in college sports.”
Huma advised Skinner’s staff on the drafting of SB 206 and has consulted with legislators crafting similar bills in Pennsylvania and New York statehouses. For him, these legislative efforts are about the liberation of unpaid labor. He sees this phase as the beginning and wants to clear the way for more impactful policy changes.
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“The lawmakers should be in control given the NCAA has been abusive. It’s been a predatory entity, and the states don’t have to put up with that,” Huma tells me. “I think that’s a big part of what [SB 206] is doing. Does it get everything? No. Do we want everything? Yes. … Are you asking if this is a grand slam? No, I think it might be a triple. Because there’s going to be additional points scored.”
Huma faces considerable challenges. Sharing revenue with players remains a nonstarter for the NCAA and its member institutions, even as revenues for the highest-earning college sports have skyrocketed. The NCAA announced an $8.8 billion extension in 2016 with CBS Sports and Turner for the rights to broadcast its men’s basketball tournament. ESPN has a $7.3 billion deal to broadcast the College Football Playoff through the 2025 season. Amateurism remains despite evidence of the value players provide. In 2011, a Drexel University study found that the average Division I basketball player had an annual fair-market value worth $265,000—and that the highest-profile player was worth as much as $1 million. The public support for paying players varies by the year. A 2015 Marist Poll found that 65 percent of Americans were opposed to paying college athletes. This March, a ScottRasmussen.com poll found that 52 percent of Americans want athletes to be paid.
Huma is pushing policymakers to consider legislation around NIL as a first measure toward changing amateurism. In Pennsylvania, state representatives Ed Gainey and Dan Miller, both Democrats, cosponsored a Fair Pay bill. Gainey believes equity is important, specifically to even the playing field for black athletes. His bill calls for third parties to provide the economic benefits not granted in the current system.
“I think that’s what agents do,” Gainey tells me. “I think that everybody has a lane to play. I think where we get it all confused and convoluted is when we get in each other’s lane.” Gainey’s idea of equity is useful in terms of passing legislation that won’t be seen as revolutionary or controversial. That, in itself, is a tool to push powerful bodies to consider enacting change. “Particularly when we’re talking about African American athletes, that you and I know have made a lot of these universities a lot, a lot, a lot of money. Made these corporations a lot, a lot, a lot of money. And at the end of the day, we talk about, ‘Well, they get an education.’ I mean that’s great, but if I made you some millions and billions of dollars, I gave you a great education, too.”“Does it get everything? No. Do we want everything? Yes. Are you asking if this is a grand slam? I think it might be a triple. Because there’s going to be additional points scored.” —Ramogi Huma
New York state Senator Kevin S. Parker, a Democrat, takes the original California legislation a step further. His proposal presents NIL as the path to payment but calls for a 15 percent share of ticket sales to be split among all student-athletes who compete for a school. His proposal also requires colleges to create an athletic fund for injured players. He views his bill as a “last step” to evening the pay gap in college sports.
“We could argue about how much they’re getting paid and all of this stuff. But, I mean, right now, I think the goal is to get economic equity on the table, and actually accomplished,” Parker says. He tells me this moment, when legislation like this is even on the table, is “revolutionary.”
These efforts are part of a legislative blueprint to compensate college athletes, an issue supported by large parts of our culture. They are designed to pass with little controversy and minimal resistance. The substance of these bills isn’t the primary issue. Policy is not made for revolution. It is based on incrementalism. It is a plug-and-play sport and often doesn’t go far enough to reform corrupt systems. The same gusto lawmakers have exhibited to push through policy proposals around NIL must persist so that athletic labor gets all of what it’s owed, not just a sliver.
One of the major gripes opponents of the NCAA have with these NIL proposals is that they don’t go far enough. They say they represent a minor, cosmetic adjustment to an unfair system. Players, a disproportionate number of them black, will continue to be denied a share of the revenue, and these bills and the public support for them provide the NCAA with ethical cover to continue to prop up amateurism.https://46959e5d62d023a8ae00f52164ab9e20.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html
“Imagine plucking a chin hair, and then telling everybody you got a haircut,” David West, a former NBA champion and chief operating officer of the Historical Basketball League, tells me. West’s venture aims to provide an alternative to the NCAA by creating a league that pays players a salary and provides full scholarships to attend schools and play basketball near where they live. He doesn’t think the NIL measures go far enough. “It’s a very, very small step and it still doesn’t address the idea that the players should be compensated without some fine print having to figure out ways to have them compensated.”
The doomsday rhetoric around paying players has existed as long as the NCAA has operated. The argument is that college athletics will implode if players are paid. Yet when has that ever been true? In 1904, James Hogan was a football star at Yale and had a deal with a local cigarette company. J.T. Wilcox, the man paying Hogan, told the press, “They buy our cigarettes, knowing that Hogan gets a commission on every box.” And college sports stayed intact. When there is a black market, it is often because the free market is restricted or unjust for those that may need it to work the most.
Since its inception at the turn of the 20th century, the NCAA has had difficulty enforcing its amateur ideals. In a 2011 piece in The Atlantic, the historian Taylor Branch outlined the history of players profiting in a black-market system. In 1929, the Carnegie Foundation published a report about schools providing financial inducements to players through schemes including no-show jobs and disguised booster funds. In 1939, players at Pittsburgh went on strike for better pay, which led to the “Sanity Code” of 1948, an NCAA ruling prohibiting underground deals and mandating student-athletes be paid only through scholarships. Schools were so shocked by how widespread these illicit payments were that universities like Virginia said if their athletes were ever accused of being paid, they should be forgiven.
As long as a system built on the exploitation of labor—particularly unpaid black labor, which makes the system profitable—remains in place, the deprivation of athletes’ civil rights will continue. That’s why advocates like Huma insist on using NIL as a continuation of the fight for equity—not the end of it.
“There’s a map in the queue,” Huma tells me. “I think the map is the compass that points to equal rights. We will not stop fighting until college athletes have equal rights. Rights that are afforded to other students and American citizens.”
It is fair to ask how many people in modern college athletics will benefit from these bills, or earn money from their NIL. Huma understands the concerns. I ask him about the driving force behind getting this right, not just with one bill, but with his entire campaign for athletic equality. Huma thinks back to the day his buddy was hungry at UCLA, in 1995, and how forceful the NCAA was in ensuring that he be punished. Huma was once under the weight of the NCAA’s rules; now he’s among its most forceful opponents, pounding the pulpit from the same state that made them feel small all those years ago.
“That is not America,” he says. “That’s not something that we think anyone should tolerate. I think this speaks to a power dynamic that has long been one-sided.”