'Fair Pay To Play' Act Seems Like A Step In The Right Direction, But If NCAA Has Its Way, It Will Be More Of The Same

NCAA Players

'Fair Pay To Play' Act Seems Like A Step In The Right Direction, But If NCAA Has Its Way, It Will Be More Of The Same

NCAA says SB 206 is "unconstitutional" and will "upend" competitive balance, but that’s just noise.

Published September 13th

Written by Jarod Hector

The California state Senate voted Wednesday (Sept. 11) to pass SB 206, commonly referred to, though slightly problematic according to some, as the Fair Pay to Play Act, with a unanimous vote of 39-0. 

The California State Assembly also approved the bill unanimously (73-0) earlier this week. The bill now moves to Gov. Gavin Newsom’s desk, who will have 30 days to decide whether he will sign it into law.

This unprecedented move by a state against the NCAA was lauded far and wide by those who believe college athletes should be paid. But the bill isn’t strictly about athletes getting paid, and the discourse surrounding the legislation could be exactly what the NCAA wants in this public battle. 

“The name of the ‘Fair Pay to Play Act’ is unfortunate,” wrote Victoria Jackson, sports historian and clinical professor of history at Arizona State University, in an email to BET.  “It gives those in power -- the NCAA, its board of governors, university presidents, and conferences -- an easy way to confuse the public and talk about all the reasons why they think schools shouldn't be paying college athletes. Whether you support or oppose colleges paying athletes, that's not what this is about. This is about returning to students who play sports the rights to their names, images, and likenesses -- rights other students who attend colleges, some on scholarship, already possess -- and the ability to make money off their names, images and likenesses.”

When an athlete signs an athletic scholarship to attend an NCAA member institution, he/she effectively signs away the right to use their names, images and likenesses for the purpose of financial gain in perpetuity. 

This is an extremely draconian practice the NCAA shrouds under the myth of “amateurism” and the ubiquitous and ambiguous term “student athlete.” 

Yes, practice. Not law. Contrary to public discourse, the NCAA is not a lawmaking entity. 

The NCAA is a registered nonprofit organization (don’t get me started on that distinction) that regulates athletes and organizes athletic programs and competitions for its member institutions. 

The NCAA is not a legislative body. 

What does this mean?

Despite what the NCAA would have you believe, allowing student athletes to have control over their names, images and likenesses won’t be the end of college sports. 

What it means is athletes on athletic scholarships will have the ability, as all other scholarship and non-scholarship students do, to earn money based on their ability. Doesn’t that sound reasonable? This is America, where we believe in free markets and the rights of individuals, isn’t it?

If signed by Newsom, the proposed legislation would not go into effect until 2023. The new law would make it illegal for California schools to take away an athlete's scholarship or eligibility as punishment for accepting money earned off of said athlete’s image or likeness. 

The NCAA’s board of governors sent a letter to Newsom urging him not to sign the bill, stating that the proposed legislation is “harmful” and “unconstitutional” and would "upend the balance" of national competition in college sports. 

The language used by the board of governors is clear in its intent. The NCAA is going to muddy the public discourse and stall and delay so that true reform won't happen. 

The notion of “harm” is there to conjure up images of “student athletes” being taken advantage of by scrupulous individuals. 

Calling something “unconstitutional” speaks to going against laws, establishment and procedure. 

Stating that this proposed legislation will “upend the balance” of competition is straight out of the dog-whistle politics playbook. If it’s one thing we (Americans) are about, it's “fairness” (when it benefits us), especially when it comes to our sports. 

If the discourse around this moves to notions and ideas of fairness, it is exactly what the NCAA wants.

The NCAA system is broken, and if change is going to happen, it will need to be done radically. The reason the board of governors doesn't want this legislation passed into law is because it will take power and control away from the governing body and give some of it back to the athletes of its member institutions. 

Collegiate athletics is a multi-billion dollar business, and the NCAA is the cartel that controls it and benefits the most, financially. If that means taking away freedom and liberties from athletes and exploitation, oh well. 

If the law is passed in California, then other states could follow suit, and this would force the NCAA to change its practices post haste, something they are not inclined to do. Instead opting for “working groups,” a muddied public discourse, and doing whatever they can to maintain the status quo. 

Board of governors chair and Ohio State University President Michael Drake says that changes should be made on a national scale and not state by state. 

“The association is open to updating its rules to better fit the 21st century. The NCAA is working actively to look at ways to modernize its approach to name, image and likeness restrictions."

Well. We are so lucky the NCAA is “open” to modernizing its approach. 

The NCAA has never been a “modern” organization in any century. This is a delay tactic and more of the same.

Jackson puts it like this:

“As for the NCAA working group, I am a historian, and we've seen this before. Working groups are a great way to appease the public to reassure that the organization is taking the issue seriously -- in this way, they serve a great PR role. Working groups also allow an institution to learn as much as it can about something so that, rather than implement the new innovation or transformative change, they can figure out how to kill it off or weaken it as much as possible.  We saw this in the 1970s with women's athletics.” 

Radical change and states one by one attacking the NCAA until they are forced to amend and relent: That’s how the larger battle will be won. 

But for now, Gov. Newsom and California have the opportunity to secure an early victory for athletes and their rights as humans.

At the Congressional Black Caucus Foundation Annual Legislative Conference in Washington, D.C., this week, the subject of paying players came up on a panel titled “State of the Black Student-Athlete in America.” Panelist Robert Turner, Ph.D., a sociologist and former pro football player said the following:

“The thing that gets lost is it’s a human rights issue. How does an athlete, at 18, sign a scholarship and all of a sudden the NCAA has control of their image and likeness?”

How, indeed. 

(Photo: Jamie Squire/Getty Images)

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