Written by Alexandra Butler and Annie Wilt
In one fell swoop, California lawmakers have disrupted archaic and discriminatory NCAA policies. According to Lebron James, “this is[n’t] checkmate, but this is a major problem for the NCAA. It’s going to change college sports for the better.”
On September 30, 2019, the governor of California signed into law the “Fair Pay to Play Act.” The Act, the first of its kind, allows student-athletes playing collegiate sports to be compensated for use of their name, image and likeness. California senators, who introduced and endorsed this Bill, have touted it as “addressing the civil rights issue of today, which is about fairness and equity,” ensuring that “colleges and universities no longer treat student-athletes as chattel, but as the valued individuals they are.”
Unsurprisingly, the NCAA, a “non-profit” organization that has significantly profited off of the abilities of student-athletes, has publicly challenged the Act, calling it the beginning of “a new form of professionalism and a different way of converting students into employees.” But such push-back is nothing new. In fact, the term “student-athlete” emerged as a way to combat worker’s compensation claims that were being filed in the 1950’s. By utilizing the term, both universities and the NCAA were able to avoid the tendencies of state agencies or governmental departments from considering grant-in-aid holders as being employees. The term student-athlete, therefore, strongly refuted any connotation that these players were employees.
Given this history, the NCAA has long argued that student-athletes do not come within the term “employee” as envisioned by the Fair Labor Standards Act. The Fair Pay to Play Act does not purport to morph college athletes into employees, however. Rather, it fairly and equally allows college athletes to be compensated, if they choose, based on the use of their own name, image, and likeness. Consider the 2015 case of O’Bannon v. NCAA. O’Bannon, a former UCLA basketball player who happened to be African-American, was shocked to discover an avatar of himself in a college basketball video game. O’Bannon had never been made aware, consented to, or been compensated for the use of his name and image in the video game. All the while, Electronic Arts (EA) was raking in nearly $3.2 billion in net revenue largely on the backs of uncompensated college athletes.
What the Fair Pay to Play Act represents is a first attempt to standardize NCAA compensation rules that are discriminatory in their effect. In in re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation, the California district court criticized the NCAA for its vague definition of amateurism or what constitutes “pay for play.” The court wrote that the “bylaws disclose[d] no principled, articulable difference between amateurism and not amateurism, or ‘pay for play’ and not ‘pay for play.’” Ultimately, as the court noted, they demonstrate that the NCAA has complete discretion in their rulemaking. As Jon Solomon, journalist at the Aspen Institute, notes, the NCAA bylaws contain exceptions that allow high school athletes to maintain NCAA eligibility while receiving some sort of compensation either pre or post-matriculation. For example, high school recruits can receive Olympic prize awards for up to $37,500, and while the NCAA limits outside payments for participation in sports competitions, it does allow high school athletes, including football players, to receive prize money that does “not exceed actual and necessary expenses.” For tennis players, however, this payment is in addition to the $10,000 to which they are eligible as a result of their placement in a competition. Once recruits become NCAA athletes, they are subject to NCAA limits on compensation for participation—football players can receive up to $550 if their team happens to be one of the lucky twenty to win an NCAA bowl game—yet tennis players still have the ability to earn from their winnings post-college enrollment.
Given these exceptions, the NCAA bylaws have larger implications, and the practical effects of these rules on different racial groups are not uniform in nature. In 2018, 61% of NCAA male basketball players and 53% of NCAA football players were non-white. For men’s tennis, however, the percentage of non-white players decreases to 47%. Thus, the NCAA rules inadvertently advantage athletes in a sport for which the barrier to entry for some minorities is high and relies, to a certain extent, on affluence. This implication seems even more troubling given the stark differences in revenue these sports generate, only adding fodder to the now-common demand that college athletes receive some form of compensation. In 2016, the Department of Education reported that NCAA football programs generate an average revenue of nearly $30 million, while men’s tennis programs generate approximately $300,000.
Inspiring lawmakers from other states, such as Illinois, Ohio, Washington, and Florida to propose similar legislation, the Fair Pay to Play Act is a first step in eliminating NCAA compensation disparities and inequality. It brings uniformity to a lacking system and as former-UCLA gymnast, Katelyn Ohashi, notes, “helps [athletes] finally earn what. . . [they] deserve.”