By: Matthew Howell, Ph.D., associate professor, EKU Department of Government
With the passage of a new law, California universities must now allow their student athletes to make money from their name, image, and likeness (NIL) [1]. For years, the NCAA has argued that paying student athletes will destroy the amateur nature, and commitment to fair play, that are the basis of intercollegiate sport in the United States. California is now testing that proposition.
The California law does not allow a free-for-all. Much of the value of the NCAA, and the reason many schools are part of the NCAA’s three divisions, is the collective income to be had from pitting the many college teams against each other. There isn’t much money in a University of Kentucky scrimmage game –but there’s a lot of money in the Governor’s Cup. Much like the professional sports leagues, the NCAA exists to set up those games so that every college can make some money. It’s not technically a monopoly in the law because other sports conferences could be created, and the NCAA can’t stop the schools from selling television rights [2], but everyone knows that they want to be in the conference that puts on the best games and gets the most money. California recognizes this, and so the law specifically prohibits players from entering into any contract that would violate the existing university contracts. If a team is getting endorsement deals with Nike, the player can’t get one with Adidas. Similarly, players will likely not be able to withhold their name, image, or likeness from NCAA broadcasts or from licensed videogames for the same reason. The law also does not require that universities pay the athletes directly. Student athletes are limited to receiving endorsements from companies not in competition with those endorsing the university.
The NCAA’s concern from the beginning was two-fold: there’s a lot of money in college sports and the schools all want their cut, and the NCAA is part of an academic ecosystem that isn’t run for profit [3]. The point of the NCAA was to create an amateur sports league that blended sport and education as part of the larger formation of a citizen-scholar, similar to the “gentleman scholar” concept that has existed for hundreds of years. Introducing economic competition into that environment will destroy the focus on fair play and love of competition which is the point of the association. Justice White argued in his 1984 dissent (NCAA vs Oklahoma Board of Regents) [4] that commercialism would destroy the educational mission as every school struggled for a bigger share of the money.
The fear that using NIL money to attract players will allow certain schools to pay to dominate the sport, and thus ruin the game. Thus, the NCAA’s response to the California law is to prevent California schools from competing with other NCAA schools.
And regardless, the open secret of college athletics is that the world the NCAA fears is largely the world we already inhabit. Only a handful of sports make money –football, basketball, baseball and lacrosse–and of those sports that make money, most of the wealth already accrues to the biggest and best programs that have been paying their athletes under the table for years. For most athletes and most schools, though, there simply isn’t enough revenue to pay athletes. The NCAA can threaten to expel the PAC 10 or all of California –but that just means the largest schools will separate from the NCAA and create their own league, while the NCAA will continue operating an amateur league with less revenue.
This is probably why the NCAA responded by instructing its three divisions to look into the best way to provide for players gaining additional compensation while still keeping the NCAA working for all members [5].
So, will the new California Law destroy college athletics? Probably no more than the current system does. But that isn’t as comforting as it sounds.
[1] Hobson, Will., “The California governor signed a law to let NCAA athletes get paid. It’s unclear what’s next.” The Washington Post. WP Company, 30 Sept. 2019. Web.
[2] “National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma.” Oyez, www.oyez.org/cases/1983/83-271. Accessed 30 Oct. 2019.
[3] Solomon, Jon., “The History Behind the Debate Over Paying NCAA Athletes.” The Aspen Institute. 23 April 2018. Web.
[4] “National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma.” Oyez, www.oyez.org/cases/1983/83-271. Accessed 30 Oct. 2019.
[5] Scott, Nate., “The NCAA isn’t allowing athletes to get paid. The NCAA is buying time.” For The Win. USA Today, 29 Oct. 2019. Web.