CA SB 206, Mark Emmert's California Nightmare
September 6, 2019 2:46 PM   Subscribe

California Senate Bill 206, better known as the Fair Pay To Play Act, is a proposed bill currently being pushed through the California legislature which would give players legal authority to use their name, image, and likeness (NIL) rights for their own benefit. The push to get the bill passed received a major push with basketball superstar LeBron James publicly supporting the bill, calling it a "game changer" for California college athletes.

The bill is designed to take aim directly at the NCAA's prohibition of college athletes from profiting on their NIL rights, as it not only protects their ability to use them, but would in addition prohibit any school or organization from punishing players who would do so. Furthermore, it would also make the NCAA's prohibition on players retaining agents against the law in California, as well as prohibiting the NCAA's "restitution" policy with regards to NIL rights.

Needless to say, the NCAA has not taken the proposal well, with NCAA head Mark Emmert decrying the bill, and threatening to cut California schools off from the postseason if it passes.
posted by NoxAeternum (34 comments total) 12 users marked this as a favorite
 
If the California Senate really cared about college athletes, they would prohibit any college that receives public funds from participating in any NCAA affiliated league.

Make the professional organizations create their own farm systems rather than leeching off of taxpayer supported public education.
posted by madajb at 5:30 PM on September 6 [13 favorites]


How exactly does that help college athletes? Most college athletes aren't going to go pro, and many do actually seek out getting an education alongside their athletics. Not to mention that the impact of such a move would be felt primarily by minority athletes.

College athletes need to be protected from exploitation, not to be kicked out.
posted by NoxAeternum at 5:52 PM on September 6 [3 favorites]


If the bill passes, high profile athletes might choose to go to CA schools instead of staying closer to home or going to big-name (in sports achievement terms) schools. If that starts happening, other states might pass similar bills. If Texas passes a similar bill, or maybe even brings it up, the NCAA changes its policy almost immediately or it's toast.
posted by LionIndex at 5:59 PM on September 6 [12 favorites]


LionIndex is right. A handful of programs in a few sports generate vast amounts of money. It won’t take very many “defectors”, or whatever you want to call them, to steamroll the NCAA. I hope it happens, the NCAA shamelessly exploits college athletes and adds no value in the process.
posted by wintermind at 6:15 PM on September 6 [2 favorites]


Pardon my ignorance, but why would a similar bill in Texas force the NCAA's hand?
posted by fragmede at 6:54 PM on September 6


California, with its schools playing at Division I level and population, is quite a blow to the NCAA. Texas also has a lot of people, a lot of Division I schools, and those schools are actually competitive athletically already. Once you remove Texas schools from say, NCAA football, NCAA football becomes an inherently lesser product.

But I'd suspect that the impact will be felt hardest and earliest in basketball, where high level recruits are basically picking schools on the sole basis of launching themselves into the NBA. If they're able to make money on their likeness in the one year they're in college, they'll probably go for that, which means all the "one and done" basketball guys go to California schools and the NCAA basketball landscape is almost completely remade.
posted by LionIndex at 7:23 PM on September 6 [2 favorites]


Pardon my ignorance, but why would a similar bill in Texas force the NCAA's hand?

A lot of the NCAA's enforcement works on the Air Bud Rule - that is, there's no law saying that the NCAA can't prohibit players from doing X, so they do. California is big enough (it has four Power 5 universities in its borders) that if this bill passes, those schools will have a major leg up in recruiting because they can tell top recruits "you come play for us, you can get paid." Because of that, if this bill passes, expect to see similar bills passed in Texas, Alabama, Georgia, anywhere there's a Power 5 university just to preserve recruiting power.

That's what terrifies the NCAA - that states will realize that they have the power to legislate the NCAA into irrelevance.
posted by NoxAeternum at 10:24 PM on September 6 [4 favorites]


To follow up on NoxAeternum’s comment, as he said, California has four Power 5 schools, USC, UCLA, Stanford, and Cal-Berkeley (the Power 5 conferences are the big leagues of college sports, consisting of the ACC, SEC, Big 12, Big Ten, and PAC-12.) All four of the P5 schools in California are PAC-12. This bill would give them an advantage in recruiting since high profile athletes could make money doing endorsements. Now let’s say Texas passes a similar bill. Texas has five Power 5 schools in Texas, Texas A&M, Baylor, Texas Tech, and TCU. Between California and Texas you have 9 of the 65 P5 schools, which is a chunk. But, if you have Texas in the equation, things really gain steam. Texas and Texas A&M are the heaviest hitters in the NCAA. Texas would suddenly have a big recruiting advantage over Oklahoma. Texas A&M plays in the SEC West, college football’s toughest division, where football is religion and everyone is willing to do anything they can to get any advantage. Oklahoma would likely quickly pass a similar bill, which affects Oklahoma and Oklahoma State. Alabama and Louisiana would likely also follow suit, to keep Auburn, Alabama, and LSU from losing their edge. You’re up to 14 of the 65 P5 schools, including the biggest names in NCAA sports. Other states - although not all P5 states - would follow. The NCAA would be in a really bad position here.

This, also, coincides with my belief that major changes are going to be afoot in college sports. I think we’re going to see certain upper level schools tell the NCAA to fark off and create an upper echelon football league. I know my post is football centric, but you have to remember that in college sports, football is where the money is at. During the last round of realignment, it was all about football and no one gave any real consideration to other sports. The Big 12 was perilously close to disintegrating and no one gave a second thought to the Kansas basketball program, one of the most storied in college basketball as well as one of the bigger moneymakers in hoops. As their coach, Bill Self, said, “Football’s driving this bus.”
posted by azpenguin at 11:46 PM on September 6 [2 favorites]


Oh, this is delightful. The bill also says that organizations -- and they name the NCAA specifically as an example -- can't prevent students from being paid for their NIL rights, nor programs where students are paid. And it only applies to colleges that receive $10M or more per year in media rights for sports. (Currently I believe only Berkeley, Stanford, USC and UCLA.)

It's very clever -- if athletes at California schools can get paid for their NIL rights, which I assume includes sponsorship deals with Nike etc, then all of a sudden for top athletes, you could go to a major school somewhere else, or go to a major in California and get paid (I'm guessing at least) six figures a year. Not to mention that it would open up bullshit sponsorships from boosters; if you're a billionaire from Stanford who cares about the team, you can offer prospective students deals to endorse your company's B2B commerce web services stack or whatever, and not bother actually doing anything with the endorsement. There are certainly some athletes out there who really love being close to home or their parents alma mater or whatever, but that kind of cash can swing a lot of players.

And if California schools start getting all the top recruits, the state legislatures in all the really sports-horny states like Ohio and Texas and Alabama will sign similar legislation so fast they'll break their fuckin' pens. There's no safer bet in politics than cheering for the home team, and this doesn't even cost the state any money.

It's basically California emissions for college sports.
posted by Homeboy Trouble at 12:03 AM on September 7 [6 favorites]


> [Stanford Athletic Director Bernard] Muir clarified in the letter that Stanford supports the welfare of student-athletes, he wrote that “allowing student-athletes to receive compensation from their name, image, and likeness, would present serious challenges for higher education institutions and to the collegiate sports model.”

dumb question: why does it present serious challenges for higher education institutions and to the collegiate sports model? is it because sports-centric schools like auburn, stanford, and the university of louisville have a monopoly on sports merch and want to maintain it? or is it something more indirect than that, like maintaining the fiction that college sports workers are primarily students rather than employees in order to prevent [x] from happening? if it's that, what is [x]? unionization or something? because that seems implausible to me.

is it because of a theory that sports-centric alumni will be less likely to give money in the absence of the thin fiction that college sports workers are amateurs?

basically: i don't get it. explain like i'm five. what's the thing that bernard muir is dancing around when he describes the bill as a "serious challenge for higher education institutions and to the collegiate sports model?" i'm sure that people more tuned in to the college sports industry know what he's carefully refusing to say, but as an outsider i can't parse his doublespeak.
posted by Reclusive Novelist Thomas Pynchon at 6:29 AM on September 7 [1 favorite]


But whatever happened to the purity of amateur sports? The only people that are supposed to be making money from college sports is everybody but the players. Next thing you know they'll be letting paid athletes compete in the Olympics.

... excuse me, I've just been informed that the Olympics has allowed athletes to get some of the money they're earning for everyone else for thirty-three years.
posted by straight at 6:33 AM on September 7 [1 favorite]


why does it present serious challenges for higher education institutions and to the collegiate sports model?

If colleges and their supporters are allowed to openly pay student athletes, richer colleges (or colleges with the richest sports donors) will get all the good players.
posted by straight at 6:36 AM on September 7


The proponents of the bill also suggest that allowing players to be paid would make it more likely they stay in school as they could make money while learning instead of having to turn pro. One of the linked sites in the main linked article, for example, quotes a study on what fair market rate might be for these athletes:

According to a 2012 study by the National College Players Association and the Drexel University Sports Management Program, the vast majority of full scholarship college athletes live at or below the poverty level in the United States. But the study also found that the fair market value for the average FBS men’s football player was $137,357, and for men’s basketball players, it was $289,829. By contrast, in 2010, the average FBS football coach received $3.5 million in annual salary, excluding bonuses.

Considering how much coaches are paid, often more than anyone else in the university they work for, one can see how a bidding war for the best players might break out. The articles I've read though didn't quite make it clear as to whether the universities themselves can offer money or if it is all second party endorsements or outside pay to play in a given school.
posted by gusottertrout at 7:00 AM on September 7


The bill seemed to suggest the universities themselves couldn't provide compensation but couldn't prevent the athlete from getting outside compensation, but I could be missing something.
posted by gusottertrout at 7:38 AM on September 7


Continuing the explain-like-I'm-five theme of this thread: why college sports? Why is this even popular in the first place? There's something very fucked-up going on here where the system appears to have this thin veneer of amateurism over what is clearly a professional product, but the only other time I've seen any country excited about the feeder leagues is in soccer, where teams who win the feeder leagues all get promoted to the big-money league. But who's cheering for a college team? Why? There surely can't be that many graduates. Surely people have to actually prefer the college game over the professional leagues for the college league to be this rich.

It's very strange, and I don't like it.
posted by Merus at 8:29 AM on September 7


what's the thing that bernard muir is dancing around when he describes the bill as a "serious challenge for higher education institutions and to the collegiate sports model?

My sense—from a professional on the academic “side” of universities—is that this is all dancing around the fact that young adult male students’ work (as elite student athletes) generates billions of dollars of revenue for lots of people and organizations/institutions, but none for the players themselves. This is, of course, profoundly unfair, and wouldn’t be allowed in any labor situation except for those where the ‘employers’ are schools, and the workers are students. (I insist that my university pay student musicians, most of them music majors of some kind, for playing at commencement services, because the activity is not part of any class or degree objective; how is this any different?)

Of course, the justification has always been that—like with degrees—competitive Division I athletics prepares these young men for their professional careers as athletes, which is when they’ll be able to monetize what they learned in college...except that these young people are not pursuing sports performance degrees (there is no such thing for some reason, I mean we have music performance degrees), the vast majority of them do not continue to play as professionals, so their sport-playing has little or nothing to do with their formal education, and has always been an obvious fig-leaf-cover for massive profiteering on the backs of (mostly disadvantaged) young men.

If high profile student-athletes are allowed to profit from their own name and image while they are students, it will not only implode the NCAA system practically, as described above, but it will completely reveal the cultural lie that big-time college sports is about anything other than money. Lots and lots of money. Nobody really seems to really care about these young men as human beings, only as labor, so my opinion* is that the least we can do is empower them to take care of themselves, as accords their ability and effort. I’m glad that my state is leading the challenge on what is actually a more prominent and consequential social issue than many perceive. It certainly will be tectonic in the world of universities and big-time sports.

*(as a professor, I’ve long been in the trenches defending institutional funding for academic rather than athletics use, but I also advocate either the creation of formal sports performance degrees, acknowledging that elite athletic performance is a viable professional path like all the others that undergraduate majors and degrees often point toward; or, the total elimination of intermural college sports, limiting them only to an intramural basis. Otherwise, I don’t see how competitive, intermural sports have much to do with the mission(s) of a university, let alone at the massive cost.)
posted by LooseFilter at 8:31 AM on September 7 [6 favorites]


(For those looking for a great, contextualized introduction to the larger problem: Beer & Circus: How Big-Time College Sports Has Crippled Undergraduate Education)
posted by LooseFilter at 8:33 AM on September 7 [1 favorite]


so my opinion* is that the least we can do is empower them to take care of themselves, as accords their ability and effort.

Yeah, I've long argued that universities should provide a sports degree that requires learning the history of sports, its business model and the labor disputes that have historically accompanied the activities. Add in options for associated elements like analytics, broadcasting, and all the other things that surround modern sports and at least the schools would potentially be fulfilling part of their promise to prepare these students for life after college and in it as well with more opportunities to make money off their own efforts.

And just to add, the reason I was wondering about the provisions in the bill around who can pay compensation to the athletes, is that if the schools themselves can't, but boosters or companies can, then recruitment is going to become a sham as boosters will be promising money to athletes in order to get them to sign that the schools will potentially have to deny any knowledge of, even though they would of course "signal" interests and otherwise seek to get involved as there isn't any way around that. The promise to play almost has to be matched to a promise to pay before the player picks the school they'll attend.
posted by gusottertrout at 9:07 AM on September 7 [1 favorite]


Surely people have to actually prefer the college game over the professional leagues for the college league to be this rich.

In the US, colleges do not just serve as educational and research institutions, but are in many places societal hubs. Remember, the US is large sizewise, and for many people, the local college is more accessible than a pro team might be. (Also, in the case of football, the college game predates the pros (the NFL is celebrating its centennial this year, while college football received condemnation for violence by Teddy Roosevelt himself.))
posted by NoxAeternum at 9:37 AM on September 7


then recruitment is going to become a sham

No kidding, and how about all those donor dollars—especially from corporate sources—that nominally go to the universities now? POOF, why build buildings on campuses when you can just sponsor the athletes, thereby also establishing a profitable business partnership directly with the individual athletes before they even move into professional leagues. (And now that I think about it, how will that upend power dynamics in professional leagues? Rookie players would be able to negotiate using dollar/market value that they bring to a franchise via corporate sponsorship deals, in addition to their monetary value as labor.)

I think a clarifying analogy w/r/t the players’ situation and perspective is (don’t laugh) to consider a performing arts setting instead: how would these issues read if they were about creative, rather than athletic, performers—say, actors or musicians. Should a talented undergraduate theater major be prohibited from taking a summer gig acting in a movie or something, because they would *gasp* get paid for their work, and thus no longer be an “amateur”? How about the amazing student players at elite music schools? Should the student working on a performance degree be disenrolled because Wicked came through town and needed an extra player in the pit, and they got the call?
posted by LooseFilter at 9:49 AM on September 7 [1 favorite]


gusottertrout, recruitment at the elite Power 5 schools is already a sham, at least for football. It’s widely believed by fans that huge amounts of money are changing hands under the table (e.g., this Bleacher Report list), but scandals seem to result only in a sacrificial coach firing and some scholarship restrictions. In extreme cases, there may be a ban on post-season play or some vacated wins. But boosters and coaches will continue to roll the dice, with a blind eye from university administrators, because the NCAA seems unlikely to ever use its strongest tool, the so-called “kiss of death”, ever again, despite major scandals at many programs, including as USC, Penn State (CW: sexual abuse of children), Ole Miss, and Ohio State.

I enjoy college football, but it’s a thoroughly corrupt institution from top to bottom. 85 (IIRC) players on each team can be on scholarship, so there are tangible benefits paid by the universities to the best players, but they’re modest in comparison to the university’s profits at a top-tier program. Look at a small, poor state like Louisiana, whose football program is one of the most profitable in the country, for example. You can’t get from Lafayette to Baton Rouge on I-10 for accidents most days, and the LSU library floods when it rains, but we just got a new $28 million locker room for the football team! Why is it against the rules for a player to take a nickel from a booster, but the school can slap that person’s name on a jersey and sell it for $200? I say pay the players whatever the market will bear and end the NCAA sham. I know people worry that the richest teams will just buy all the top players, but the elite players want to actually get on the field, and I’m not sure what to say to those who don’t think that Alabama, Clemson, Oklahoma, and all the rest don’t already pay their talent. No, I can’t prove it, but I sure believe it.
posted by wintermind at 10:23 AM on September 7 [1 favorite]


gusottertrout, recruitment at the elite Power 5 schools is already a sham

Oh yeah, I agree, it even drifts down to high school level, where I've had some friends in coaching and knew all sorts of squalid details. I'm more just wondering whether they've thought through that aspect of the bill, because it almost demands athletes and schools negotiate "off the books" to make it work. It's an odd seeming oversight if I'm reading it right. Or maybe not so much an oversight, just a way to make it seem like universities aren't going to be paying in order to get more support, even as it likely would still cost them money in a more indirect manner.
posted by gusottertrout at 10:46 AM on September 7


Ah, gotcha.
posted by wintermind at 11:27 AM on September 7


There are several big cities like Raleigh and Columbus and entire states like Alabama and Nebraska that have no NFL team but enormous college football programs that are just about as big a deal in those areas as a professional team would be.
posted by straight at 3:08 AM on September 8


> how about all those donor dollars—especially from corporate sources—that nominally go to the universities now? POOF, why build buildings on campuses when you can just sponsor the athletes, thereby also establishing a profitable business partnership directly with the individual athletes before they even move into professional leagues.
and:
>> then recruitment is going to become a sham

> recruitment at the elite Power 5 schools is already a sham
is this a decent synopsis of the business model?
  1. because the ncaa has banned all methods for school alumni to give money to school sports employees, their employer gets to soak up all that money instead — and it's a lot of money.
  2. schools attempt to halfassedly cover up their economic motives by pretending that the ban on employees getting paid is rooted in a desire for balanced leagues or something like that. this is even though the leagues are all wildly unbalanced. like, we're talking scottish football league unbalanced. but no one actually buys that line — it's just some bafflegab they throw up because nonsense is the only thing they can say that wouldn't be a confession.
i have to admit, i am deeply uncomfortable with how the physical infrastructure of elite universities — and i am here looking very hard at specifically the california football schools, which tend to be known both for elite academics and elite football in a way that few other schools are — is in part paid for off the labor of football employees, who spend their time in college getting their bodies and brains wrecked, who receive no meaningful education, and who are the most part are spit out at the end of their four years with no meaningful prospects for an athletic career.

is it weird to observe that versions of this business model shows up in other parts of the academy? because versions of this business model show up in other parts of the academy. i am specifically thinking about how graduate study in the humanities works, and about how grad students and postdocs in stem do most of the work in the labs without necessarily having any real prospects of getting on the tenure track themselves.

i'm not someone who thinks the institution of collegiate sports makes sense, but i think possibly this might be a venue for establishing solidarity. like, maybe grad student unions at california schools need to go hard in support of this bill.

and maybe the easy "why even sports at college anyway?" line is a distraction from the real issue. maybe it's not that college sports are a bad thing and shouldn't exist. maybe it's that university administrations are bad, and the university would be better off without them.
posted by Reclusive Novelist Thomas Pynchon at 7:50 AM on September 8


because the ncaa has banned all methods for school alumni to give money to school sports employees, their employer gets to soak up all that money instead — and it's a lot of money

With the catch that almost always "their employer" is "their school's athletic program" and not "their school," as athletic programs usually parasitize both on their employees and their schools.
posted by GCU Sweet and Full of Grace at 8:36 AM on September 8


Most big-time (i.e., NCAA Division I) university sports programs are a net cost to their respective institutions, and also capture an unknown (but likely large) portion of available donor funds, that might go to the university proper otherwise. Also note that the highest-paid public employee in nearly every U.S. state is a university football or basketball coach, which indicates where all that money that the labor of the players creates is really going: to third parties who have little or nothing to do with either the student athletes or the university itself. At all of these schools, the real seat of power on campus is the Athletic Department, and most of the money involved goes there, or to the NCAA, or to for-profit corporations.

maybe it's that university administrations are bad, and the university would be better off without them.

Well, bad university administration is bad, but any large-scale endeavor needs good management to be most effective. Personally, I’m reflexively wary of framings that create a dilemma of any kind, as there are almost always more than two choices possible; also, this particular false dilemma has been very well-leveraged by the Republican Party to convince far too many American voters that all government is intrinsically bad, when the truth is that bad government is bad, but good government is important and necessary and can actually be really great. (Having said that, I personally have never encountered a university setting with net “good” administration above the College level. Additionally, my experience in public university governance has shown me that most university presidents/chancellors are pretty powerless when it comes to Athletic Departments and Athletic Directors.)
posted by LooseFilter at 11:42 AM on September 8


How does a school resolve this with Title IX? If an athletic department pays valuable male football and basketball players millions of dollars without paying female softball and volleyball players similarly, what happens?
posted by billm at 1:47 PM on September 8


That's probably another reason why the bill seems to prohibit schools from paying athletes directly while allowing them to receive payment from outside endorsements. It avoids the problem of Title IX issues by pretending the athletic departments won't be involved and it's just the free market at work.
posted by gusottertrout at 1:22 AM on September 9 [2 favorites]


SB 206 passed in the Assembly 72-0.
posted by NoxAeternum at 6:02 AM on September 10


How does a school resolve this with Title IX? If an athletic department pays valuable male football and basketball players millions of dollars without paying female softball and volleyball players similarly, what happens?

Wouldn't the dodge just be that it is Nike or Bob's Chevrolet doing the paying? All athletes are getting paid the same, select athletes just also have lucrative endorsement deals. Title IX only applies to organizations recieving federal funds.
posted by Mitheral at 8:19 PM on September 10


Today is a bad day for Mark Emmert, as CA Governor Gavin Newsom has signed SB 206 into law.
posted by NoxAeternum at 9:01 AM on September 30


The NCAA letter called the California bill "unconstitutional," suggesting that the organization might sue the state to prevent its implementation.
So the NCAA is threatening to sue over SB206. What the hell would be their standing here? The law doesn't require the NCAA to pay; it just allows someone to pay if they want. Sure it breaks their rules but *shrug*. Does the NCAA enjoy some sort of privileged legal situation like MLB's anti trust exception.
posted by Mitheral at 3:09 PM on October 2 [1 favorite]


The analysis I've seen points out a ruling that came out of Jerry Tarkanian's legal battle with the NCAA in the 80s - after he lost at the Supreme Court, Nevada passed a law saying that disciplinary hearings for Nevada employees had to meet certain standards, and Tark asserted that the NCAA hearing had to meet those standards. The NCAA sued on Commerce and Contract Clause grounds, winning on them.

I'm not seeing how this is applicable here though - the NCAA already lost O'Bannon, and the California government has a vested interest in protecting the NIL rights of residents.
posted by NoxAeternum at 3:49 PM on October 2


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