Did NCAA Really Agree to Allow College Athlete NIL Compensation? Nope

NCAA Name Image Likeness NIL Pay college athletes

On Tuesday, the NCAA’s working group released its decision on the college athlete name, image, and likeness (NIL) compensation issue. Or did they? All of the headlines immediately read that the NCAA allows college athlete NIL compensation. At first glance, the NCAA’s statement would lead one to believe that they did just that. The statement read that “the NCAA’s top governing board voted unanimously to permit students participating in athletics the opportunity to benefit from the use of their name, image, and likeness.” However, when looking a bit closer it becomes very apparent that the NCAA never used the word compensation in the context of allowing NIL payments. The NCAA danced around the compensation issue without ever calling it compensation.

In fact, the NCAA was not clear at all about how they plan to address the college athlete NIL compensation issue. They essentially addressed the issue without truly addressing the issue. Their statement is riddled with unclear ambiguous language that essentially renders the NCAA’s true stance on the issue unclear. The NCAA’s lack of clarity should come as no surprise. After all the NCAA is only addressing NIL compensation after being forced to do so.

The NCAA was Strong-Armed into Addressing College Athlete NIL Compensation

2019 has been a volatile year for the NCAA. State and federal lawmakers have become increasingly vocal about the injustices that plague the college athletics system. Several lawmakers introduced legislation to remedy those injustices. In January, Washington State Senator, Drew Stokesbary, introduced legislation to allow college athletes in Washington state to profit from their NIL. Soon after, Congressman Mark Walker introduced the Student-Athlete Equity Act. Under the Student-Athlete Equity Act, the NCAA would lose its tax-exempt status if it does not allow college athlete NIL compensation. While these bills were being introduced, lawmakers in California were debating the Fair Pay to Play Act. All of this led the NCAA to create a working group to address the NIL compensation issues.

However, the working group did not work fast enough for California. California Governor Gavin Newsom signed the Fair Pay to Play Act into law. Under the law, college athletes in California will be allowed to profit from their name, image, and likeness and sign with agents starting in 2023. In spite of the NCAA’s efforts to thwart the Fair Pay to Play Act, it still became law. As a result, the NCAA’s working group had no choice but to acknowledge the need to “modernize” their rules in favor of college athlete NIL compensation. The NCAA was forced to either move towards NIL compensation or to at the very least appear to be moving towards NIL compensation. It seems as though the NCAA has chosen to appear to be moving forward with college athlete NIL compensation.

The NCAA Has Chosen to Give the Appearance of Moving Towards College Athlete NIL Compensation Instead of Truly Moving Towards it

While the NCAA has everyone saying that they have decided to allow college athlete NIL compensation, that is not exactly true. In fact, the NCAA never used the word compensation in that context. The NCAA voted to allow college athletes to “benefit” from the use of their name, image, and likeness, not to be compensated. It is not clear what “benefit” actually means. What kind of “benefit” will the NCAA allow? How are NIL benefits different from NIL compensation? However, what the NCAA did make clear is that the “benefit” will be done “in a manner consistent with the current collegiate model.” In true NCAA fashion, the NCAA spared no expense in making it clear that they are dedicated to preserving as much of the current collegiate model as possible. In fact, the NCAA set out a list of guidelines that are dedicated to doing just that.

The NCAA’s Rule Modernization Guidelines

As a part of its effort to allow college athletes to “benefit” from their NIL, the NCAA has urged each division to consider modernization of its bylaws and policies. To help each division with doing that, the working group created a set of guidelines for each division to consider. However, those principles and guidelines seem to be more about ensuring that the divisions create bylaws that maintain the NCAA’s commitment to amateurism.

For example, the NCAA has urged its divisions to amend their rules so that athletes receive similar treatment as other students. However, the guidelines provide a caveat that will allow athletes to be treated differently when there is a compelling reason for doing so. However, in true NCAA fashion, there is no clarity on what is a permissible compelling reason for different treatment. Additionally, the guidelines require that the amended bylaws maintain a “clear distinction between collegiate and professional opportunities.” This is clear amateurism perservation language.

The NCAA also urged that the bylaws be amended so that it is clear that “compensation for athletic performance or participation is impermissible.” In fact, that is the only context in which the NCAA made reference to compensation. They mentioned it to reiterate that compensation related to athletic performance is not permissible. Furthermore, the NCAA instructed that the bylaws be amended with the caveat that “student-athletes are students first and not employees of the university.” Again, their true focus is on preserving amateurism.

The NCAA’s Statement is not the Earth Shattering Development it was Made out to be

While the NCAA’s statement is noteworthy, it is not the groundbreaking development it was made out to be. It is noteworthy because the NCAA finally acknowledged that college athletes should be allowed to “benefit” from their NIL. However, it is not groundbreaking because the NCAA is still committed to preserving the farce of amateurism. After all, the NCAA is only addressing this issue after realizing that they had no choice. The NCAA was very careful not to say that college athletes are allowed to receive compensation. They strategically used the word “benefit” and neglected to define what a “benefit” would be.

While some of the guidelines addressed the betterment of college athletes, there was a heavy focus on protecting amateurism. The guidelines also created more questions than answers. It is for these reasons that the NCAA’s statement feels like a half measure that was intended to slow down the momentum of related legislation. Furthermore, the statement does not address college athletes’ ability to sign with agents. The NCAA addressed this issue during the summer for elite men’s basketball players. The NCAA needs to address this in the broader context as the Fair Pay to Play Act and other proposed legislation seeks to allow college athletes to sign with agents. The most useful finding that comes out of this statement is the fact that the NCAA has acknowledged the need for change. However, what form the NCAA will allow that change to take is still very unclear.

Like Dominos, States are Falling into the College Athlete NIL Movement

compensate College Athletes

Last week, California Governor Gavin Newsom set a trend when he signed the Fair Pay to Play Act into law on LeBron James’ hit show The Shop. The new law will take effect in 2023. The Fair Pay to Play Act will give college athletes in California the ability to profit from their name, image, and likeness (NIL). Specifically, college athletes will be allowed to garner endorsement deals and otherwise monetize their NIL without losing eligibility. The law also allows college athletes to sign with agents. The Fair Pay to Play Act is proving to be a trendsetter. Several states have announced plans to join the college athlete NIL movement.

Prior to the Fair Pay to Play Act being signed into law, a few other states had plans to introduce similar legislation to comp. Since the Fair Pay to Play Act became law states in almost every region of the country have announced plans to create similar legislation. The NCAA’s threats to ban California colleges from post-season play has been no match for legislators who are determined to do what is right for college athletes. These legislators are determined to create a more equitable college athletics system.

Currently, college athletes propel a billion-dollar college sports industry and are limited to a cost-of-attendance scholarship for their efforts. Meanwhile, coaches’ salaries continue to grow and the non-profit NCAA generates a billion-dollars per year. Several state and federal lawmakers are determined to give college athletes a bigger piece of the pie. Let’s take a look at the states that have joined the college athlete NIL movement since the passage of the Fair Pay to Play Act.

States With Plans to Introduce College Athlete NIL Legislation

In the midwest, Illinois and Minnesota state lawmakers have announced plans to introduce a college athlete NIL bills. Pennsylvania and Maryland are both considering introducing legislation similar to the Fair Pay to Play Act. Several lawmakers in Nevada have stated that they would consider introducing similar legislation. A lawmaker in Kentucky is reportedly drafting a bill addressing college athlete compensation. Perhaps the most notable state to join the college athlete NIL movement is the state of Florida.

Two Florida lawmakers have already filed bills. On October 4, Chip LaMarca filed HB 287. This bill seeks to allow college athletes to profit from their name, image, and likeness. If signed into law, it will become effective on July 1, 2020. Prior to HB 287, Florida representative Kionee McGhee filed HB 251. That bill is also set to become effective on July 1, 2020. HB 251seeks to allow college athletes to receive “specified compensation.” The bill will also create a Florida College System Athlete Name, Image, and Likeness Task Force. With these two bills, Florida is bound to give college athletes the ability to profit from their NIL.

Download the Podcast Detailing CA and the Other States Legislation

The College Athlete NIL Movement has a Potential Newcomer on the Federal Level

The current collegiate model is not only being challenged on the state level. The collegiate model is being challenged at the federal level as well. Earlier this year, U.S. Congressman Mark Walker introduced the Student-Athlete Equity Act. The NCAA is exempt from federal taxation as an organization that organizes amateur sports and national championships. The Student-Athlete Equity Act seeks to remove that exemption if the NCAA continues to enforce rules that prohibit college athletes from profiting from their NIL. In addition to this fight at the federal level, the NCAA is about to face another one.

A U.S. Congressman from Ohio is planning to introduce a federal bill similar to the Fair Pay to Play Act. Representative Anthony Gonzalez, a former Ohio State wide receiver, plans to introduce a federal bill that will allow college athletes to profit from their name, image, and likeness. Gonzalez would like to see NIL compensation become a reality before 2020. However, he may wait until the NCAA’s NIL working group releases its’ findings before introducing legislation.

Paying College Athletes has Bipartisan Support

As more state and federal lawmakers announce plans to introduce college athlete legislation, it is becoming increasingly apparent that the issue has bipartisan support. Both Republican and Democratic lawmakers have been vocal in support of the legislation. Perhaps this is because they all can see the blatant inequities in the current collegiate sports system. In a capitalist society, no one can reasonably support the notion that college athletes should be prohibited from profiting from their NIL. The bipartisan support will continue to grow. The NCAA will be forced to enact a meaningful change on the issue or sit back and watch lawmakers do it for them.

What California’s Fair Play to Pay Act means for South Carolina, Colorado legislation

California Fair Play to Pay Act Colorado and South Carolina NCAA

Governor Gavin Newsom broke the internet this morning when a video of him signing the Fair Pay to Play Act into law was released. The Fair Pay to Play Act was one of the hottest issues of the summer. It led everyone to debate if college athletes should be paid above a cost-of-attendance scholarship. The debate is no longer, at least for college athletes in California. Governor Newsom sat with LeBron James on his hit show The Shop and signed the bill into law.

King James was an ardent supporter of the bill. The Fair Pay to Play Act will give college athletes in California the ability to profit from their name, image, and likeness (NIL) and the ability to sign with an agent. Governor Newsom ignored the NCAA’s threat to prohibit colleges in California from participating in post-season championships and signed the bill into law. What will this mean for college athletes in California in 2023 when the bill is set to take effect?

The Fair Pay to Play Act

The Fair Pay to Play Act seeks to accomplish two goals for college athletes attending four-year colleges in California. One goal is to allow them to sign with agents. Pursuant to the bill, the agents must be licensed with the state. The agents must also be fully compliant with the federal Sports Agent Responsibility and Trust Act. The second goal is to give college athletes in California the ability to profit from their name, image, and likeness.

Under the Act, colleges will be prohibited from upholding any rule that prevents college athletes from receiving compensation for their NIL. Any compensation that is earned will not affect the athletes’ scholarships. Furthermore, the NCAA will not be able to keep college athletes from participating in collegiate sports simply because they receive NIL compensation. The NCAA also will not be able to ban a school from participation because its athletes receive NIL compensation.

However, college athletes do not have a blanket rule to enter into a contract without any consideration for their team’s pre-existing contracts. If an athlete enters into a contract, the athlete must inform the school. If the athlete’s contract conflicts with the team’s contract, the athlete will not be able to enter into that contract. However, the team contract will not prevent an athlete from receiving NIL compensation when the athlete is not engaged in official team business. The Act does not apply to prospective college athletes. The Fair Pay to Play Act will only apply to four-year colleges. However, the California legislature intends to create a community college NIL working group to study the California Community College Athletic Association’s rules.

Podcast Discussion About the Name, Image, and Likeness Bills

How will the Fair Pay to Play Act Effect Colleges in other States?

During his appearance on The Shop, Governor Newsom stated that “the [Fair Pay to Play Act] will initiate dozens of other states to introduce similar legislation.” Governor Newsom could not be more right. Before he signed the Fair Pay to Play Act into law other states had already followed suit. For example, New York state senator Kevin Parker introduced the New York Collegiate Athletic Participation Compensation Act. The New York bill is very similar to the Fair Pay to Play Act, but goes a bit further.

New York Collegiate Athletic Participation Compensation Act

The New York Collegiate Athletic Participation Compensation Act also seeks to give college athletes the right to profit from their NIL without losing their scholarship or collegiate eligibility. The bill prohibits New York colleges from upholding any rule that prevents college athletes from receiving NIL compensation. The bill also prohibits the NCAA from banning an athlete from collegiate participation due to NIL compensation. Likewise, the bill prohibits the NCAA from banning colleges whose athletes receive NIL compensation.

Like the Fair Pay to Play Act, college athletes in New York would not have the blanket ability to enter a contract without consideration of their team’s pre-existing contracts. The athletes will be required to inform their school of any contract they enter into. They would not be allowed to enter a contract that conflicts with the team’s contracts. However, a team contract will not prevent an athlete from receiving NIL compensation when the athlete is not engaged in official team business.

The New York Collegiate Athletic Participation Compensation Act also gives college athletes the ability to sign with agents. The agents must be properly registered and compliant with federal laws. The bill also exempts community colleges and calls for a working group to be created to address the NIL issue for community colleges. The bill also does not apply to prospective college athletes. The New York Collegiate Athletic Participation Compensation Act is very similar to the Fair Pay to Play Act. However, the New York bill takes college athlete compensation a couple of steps further.

The New York Collegiate Athletic Participation Compensation Act Seeks to go the Extra Mile

The New York Collegiate Athletic Participation Compensation Act seeks to go the extra mile by requiring that each college establish a fund for injured athletes. With this provision, athletes who suffer a career-ending injury in a practice or game will qualify for the fund. The athletes would receive the money upon graduation. The amount of compensation would be determined by each school. Perhaps most notably, the bill goes further by requiring that each college share 15 percent of its revenue from ticket sales with the athletes. These are major differences because it requires the schools to make direct payments to the athletes. Hopefully, California has broken the ice so that these additions to college athlete compensation can become law.

Colorado and South Carolina Also Have Plans to Follow Suit

Lawmakers in South Carolina and Colorado have already announced their intentions to follow suit. They both plan to submit legislation similar to the Fair Pay to Play Act in their upcoming legislative sessions. South Carolina State senator Marlon Kimpson and representative Justin Bamberg plan to introduce the bill. The bill will require the biggest colleges in South Carolina to pay $5,000 a year stipends to athletes in profitable sports like football and basketball. The bill will also seek to allow college athletes to receive compensation from sponsorships and autograph signings.

The Colorado legislation was introduced last session by state senators Owen Hill and Jeff Bridges. However, it was too late in the session when it was introduced. The senators plan to re-introduce the bill in the next legislative session. The Colorado bill will also require direct payment to college athletes from schools. Former college athlete Jeremy Bloom is a supporter of the Colorado legislation.

Whether the NCAA likes it or not, NIL Payments are Coming

Governor Newsom did not back down to the NCAA. From the looks of things, other states are not going to either. Whether the NCAA likes it or not, NIL compensation is coming. As Maverick Carter pointed out on The Shop, America is a capitalistic society. College athletes should have the same rights to participate in this capitalistic society like every other student. The Fair Pay to Play Act and other similar legislation seek to give college athletes that right. In light of Governor Newsom’s decision, it will be interesting to see what the NCAA’s NIL working group proposes. The working group is expected to share its findings and decision soon.