By Madelaine Bauer.
For many years, there has been a crucial debate circulating the college athletics world—whether college athletes should be compensated, specifically, for their name, image or likeness. Circling back to 2009, the National Collegiate Athletic Association (“NCAA”) faced their first uproar of the controversy on college athlete compensation with the release of their EA Sports NCAA Basketball ’09 video game. The NCAA found themselves as the defendants of a class action lawsuit headed by former UCLA basketball player, Ed O’Bannon. The claim of this class action was for a violation of the Sherman Antitrust Act and denying the athletes’ right of publicity—by using the athletes’ name, image and likeness in the production of their games without permission or compensation. After a long-awaited trial, the court ruled the NCAA’s use of the college athletes’ name, image and likeness without the athletes’ consent or awarding compensation was in violation of the law. The court reasoned, compensation was to be offered with scholarships and covered cost of living. Further, to preserve the character and quality of the game, athletes should not be paid.
This long held practice has been brought back to light with one of California’s most recent bills. On Monday, September 30, 2019, Governor Gavin Newsom signed Senate Bill 206 into law. With the signature and approval of Senate Bill 206, college athletes in California will be able to receive endorsement deals and profits for their name, image or likeness starting on the first of January in 2023. Although the NCAA alleges this compensation for athletes is unconstitutional, Senate Bill 206 is a pushback on NCAA, allowing student athletes to hire agents to assist them in obtaining contracts and endorsements.
California is the first state to allow their athletes to be compensated and is potentially setting the trend for wave of states to follow along with caution. After word of Senate Bill 206, Governor Ducey mentioned that he is in open to compensation for college athletes, but nothing to the extreme of the Newsom’s newly enacted law. Ducey believes there is an equitable way to go about compensating college athletes for other costs not covered by a full-ride scholarship without losing the specialness of college athletics. Further, Ducey mentioned the potential recruiting advantage that could arise from certain colleges being able to provide additional payment to athletes over others.
On one hand, it is important for student athletes to receive compensation for their work and use of their name, image or likeness. In reality, college teams would be nothing without the athletes who put their heart and soul into the game—shouldn’t they be able to profit from some of the revenue the teams are producing? On the other hand, athletes already receive free education, get into schools they normally would not be accepted to, free clothes, free equipment and meals throughout the day—they know what they are signing up for and these accommodations should be considered some payment alone. Football is one of the few college sports that generates any form of revenue for a majority of the universities and if you start paying all eighty five scholarship players on each team there is a likelihood it can lead to the detriment of other sports teams at the universities that don’t generate as much revenue—such as golf, gymnastics and swimming.
Further, if states begin to enact these student athlete compensation laws, a big red flag that comes into play is the ability to bribe players to join certain teams because of the higher pay—leaving less fortunate universities out of the chance to compete. There is no doubt the passing of Senate Bill 206 is leaving states and colleges awaiting the NCAA’s response to reconsidering the rules regarding compensation for athletes for the use of their name, image and likeness.
The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.