Is the “Fair Pay to Play Act” Really Fair?

When I started Flagrant, I promised that it would cover issues outside of athletic amateurism. And I promise, it will. Just not quite yet.

Earlier this week, Nancy Skinner’s Fair Pay to Play Act (SB-206) passed the California Senate. Should it pass the California State Assembly and receive approval from Governor Gavin Newsome, it will become a state law, effective 2023.

Essentially, The Fair Pay to Play act is designed to challenge athletic amateurism at the state level. Should it officially become law, SB-206 would 1.) enable NCAA athletes to profit from their images and likenesses and 2.) prohibit California schools and athletic organizations (namely the NCAA) from restricting athletes’ free market activity.

Skinner is essentially hoping to force the hand of the NCAA by legally prohibiting California schools from following amateurism mandates.

That’s dangerous. Here’s why:

First, I’m assuming SB-206 will pass but let’s pretend for a moment that it doesn’t. A highly-publicized legal balk would just strengthen the NCAA’s argument for the necessity of amateurism as an integral part of collegiate athletics. Several Power Five programs in the state of California have expressed opposition to the bill, which already isn’t a good look. If progressive, profitable California schools aren’t on board with repealing amateurism, why should the NCAA change anything? Legally, if the bill fails, the argument for amateurism will only grow stronger, bolstered by courtroom opposition.

Here is another problem with attacking amateurism at the state level: the NCAA is a private institution not bound by state legislation. Ultimately, the NCAA gets the final say on who is a member and who is not. If SB-206 becomes a law, the NCAA would either have to restructure its entire business model by 2023 (the ideal outcome) or punish its California members for following state laws (which is problematic).

Here’s a critical take: although California is a gold mine for Pac-12 sports, I don’t see the NCAA acquiescing to the demands of SB-206. Rather, I see it making a statement by opposing it and ruling athletes and entire institutions ineligible. If the NCAA refuses to budge against California, that sends a strong message to other Power Five-heavy states (like Texas or Florida) that the Division 1 Manual is more powerful than the law.

If this scenario plays out, it could spell trouble for the NCAA’s California member schools. Although prominent coaches like Mike Krzyzewski and John Calipari have expressed disdain at amateurism mandates, member schools still must adhere to NCAA guidelines in order to receive a.) funding and b.) opportunities to compete against other member schools. Needless to say, California programs have a lot to lose if the NCAA plays hardball.

Essentially, the Fair Pay to Play Act will prohibit member schools from following NCAA rules but it’s not like these institutions have a choice in their compliance; whether they like it or not, member schools are bound to the mandates in the Division 1 Manual. Where else would their teams compete but under the NCAA? There’s no comparative organization that offers the same opportunities for profit, prestige, and competition.

The NCAA holds a corner market in the industry of hyper-competitive collegiate athletics. There’s literally nowhere else to go, which one of the ways the NCAA forces compliance. It’s a sketchy business model but it works. And the NCAA gets to choose how strictly it punishes members who stray from it.

Additionally, member schools, for better or worse, have to follow the money, which is why USC, Stanford, and the University of California have already voiced opposition to SB-206. They know a law that punishes member schools for adhering to the rules to which they are bound will siphon off their monetary and competitive resources. And those effects would trickle down to the athletes.

If SB-206 passes and the NCAA ends up banning non-compliant California schools from participation, The Fair Pay to Play Act could ironically threaten the financial well-being of California athletes by cutting off funding to their programs. If California universities are banned from competing, what will happen to the scholarships of the athletes affected? That’s anyone’s guess but because NCAA scholarships aren’t four-year deals, I’m uncomfortable with that potential outcome. So although SB-206 is well-intentioned, it could actually do much more harm than good not only for the universities that depend on the NCAA for funding and membership but the individual athletes who depend on their scholarships.

I know these are all hypothetical situations at this point and that the ideal outcome is that the NCAA will cave under legal pressure rather than take action against its California members. It’s entirely possible that the NCAA will buckle but it’s equally possible that it will buckle down. For now, passing the Fair Pay to Play Act is a risky gamble and California lawmakers are betting with athletes’ scholarships and NCAA eligibility.

That’s not fair.

I’m all for repealing amateurism, but I can’t fully support the Fair Pay to Play Act because it’s dangerous to put athletes in the line of fire in an attempt to prompt change. Although I love what California is trying to do, putting constituents at risk is never the right way to pressure the organizations that subdue them.