On September 30th, 2019, California Governor Gavin Newsom signed into law Senate Bill No. 206, colloquially known as the “Fair Pay to Play Act.” While much smaller in scale than previously theorized athlete compensation models, the Fair Pay to Play Act marks a symbolic win in the struggle for fair athlete compensation under the NCAA as it prevents universities from punishing athletes from making money off of their own name, image, and likeness (NIL). While the potential implications of the act remain to be seen, the modern Olympic amateur model, which also allows athletes to profit off of their NILs, serves as a solid precedent for understanding how the future of college sports and the NCAA might shape out. Although the act will not upend the NCAA’s amateur model, it does provide important corrective measures for athlete compensation and represents a fundamental, progressive shift in the definition of amateurism that will give athletes slightly more individual control over their financial, personal, and future professional lives.
In the decades leading up to the Fair Pay to Play Act, the NCAA experienced a meteoric transformation into a financial behemoth, best characterized by its persistent and steadily increasing commercial market power. The growth of television and various streaming services in particular fostered an unprecedented increase in broadcasting revenue, pushing college sports to the screens of a very willing public. The massive sums of money generated by the NCAA naturally evoked debates about the athletes, who earn zero compensation for their labor. The various arrangements and regulations give the NCAA broad and favorable control over the athletes themselves, and violation of these arrangements and regulations could result in penalties and sanctions, such as suspension and or loss of scholarships. As such, athletes not only don’t receive compensation for their labor, but lose almost all control over the financial and academic facets of their lives to the scaly hands of the NCAA. The massive amounts of money that certain universities (think Duke and Kentucky), receive and allocate to staff members only further blurs the line between collegiate and professional athletics.
For the athletes, the lack of compensation in an increasingly profitable market can have a variety of personal and future career ramifications. It is important to acknowledge that a universal standard for amateurism does not exist and different sports governing bodies define amateurism in relation to unique variables at play. A popular term likened to college athletes is “student athlete,” or the idea that any college student participating in athletics is first and foremost there to receive an education. But educational compensation oftentimes doesn’t address more immediate and personal needs of athletes. In an interview in 2014, Shabazz Napier described “hungry nights that [he] doesn’t have enough money to get food.” Napier’s comment perfectly encapsulates the stark reality of this dynamic, which proves ironic considering the fact that he led the UConn basketball team to the national championship that year, earning the university big money. It turns out that for many minor sports and female athletes, college represents a unique time and place where they can capitalize on their long hours of dedication and athletic capabilities. Even small, local endorsements worth a fraction of professional deals may have significant value to the athletes who will not likely profit off of their sports in the future due to lack of commercial appeal or unexpected injuries. In either case, athletes and lawmakers alike have recognized the need for a more substantive system of player support and compensation long before the Fair Pay to Play Act.
The most avid proponents of player compensation have suggested wage models, where athletes receive wages for their labor. The introduction of wages, however, also represents a total, seismic shift away from the “student-athlete” amateur dynamic and into the realm of professionalism. In his ground-breaking op-ed in 2011, civil-rights historian Taylor Branch calls for such a shift. Specifically, Branch compares the NCAA to the Amateur Athletics Union (AAU), which oversaw U.S Olympic Athletes. Branch claimed that the passing of the Amateur Sports Act in 1972, granting athletes a twenty percent voting stake in every Olympics Sports governing body, effectively led to the delegitimization of the AAU, which in turn led to the dissolution of amateurism in the Olympics. Branch also cites a large scale, institutional change epitomized by the replacement of AAU with National Governing Bodies. However, while many similarities exist, the comparison between the Olympics and the NCAA does not provide a clear procedural stepping stone for the Fair Pay to Play Act given the differing definitions of amateurism. In contrast to the NCAA, the Olympic definition of amateurism has changed throughout history based on the context of the period. The changing dynamics of Olympic amateurism stemmed largely from geopolitical struggles during the Cold War, where nations, most notably the US and USSR, saw the games as almost a symbolic struggle between the capitalist and socialist systems (Llewelly and Gleaves 6). The issue with Branch’s argument is that the changing tides of amateurism in the Olympics do not follow a linear, predictable structure, nor does it retain the same characteristics as when it was first coined as the NCAA definition does. Therefore, to try to predict the outcome of the Fair Pay to Play Act based on the historically unique progression of the Olympics would not only be difficult, but ultimately fallacious. A more viable solution would be to compare the Fair Pay to Play Act to Olympic amateurism, or the lack thereof, in the modern-day context.
The modern Olympic amateur model allows for the same mechanisms of money-making as those highlighted in the Fair Pay to Play Act. Rule 40 of the Olympic Charter dictates that:
“Competitors, team officials and other team personnel who participate in the Olympic Games may allow their person, name, picture or sports performances to be used for advertising purposes during the Olympic Games in accordance with the principles determined by the IOC Executive Board.”
Olympic Charter
The Fair Pay to Play Act gives athletes in the state of California the ability to negotiate the commercial use of their own NILs, most namely from third-party sources such as sponsorships and endorsement deals. The bill also states that “earning compensation from the use of a student’s NILs shall not affect the student’s scholarship eligibility.” Except for differences in wording and the “principles determined by the IOC Executive Board” sounding slightly ominous, both the documents essentially give athletes new avenues to make money from third party sources. The Olympics provide plenty of success stories of athletes competing in an amateur setting, while still receiving some form of compensation for their efforts. Most notably, decorated US swimmer Michael Phelps earned an estimated $7 million annually in the years following the 2008 Beijing Olympics, mainly from sponsorships and endorsements. Since then, he has been able to utilize his NIL to partner with major corporations such as Visa, Subway, Wheaties, and Louis Vuitton.
While not representative of the typical Olympian, Phelps does embody a kind of commercialization of the Olympics as a result of advancements in media and newfound marketing methods. The Olympics has increasingly become integrated into a wider media entertainment structure of globalized transnational and multi-corporate organizations. So as new forms of media open up new markets, athletes actually gain a distinct advantage in that market as modern celebrities and influencers. By the same token, the Fair Pay to Play Act offers a similar hold for athletes at the collegiate level, albeit in a slightly smaller domestic market, as opposed to a global one. The NCAA benefited from a market arrangement with the players in which they were the only buyers. The Fair Pay to Play Act opens up the market to the bevy of third-party sponsors but also, most importantly, the athletes themselves, who have the opportunity to market off of their own names on Twitter, Instagram, YouTube, etc. As such, the athletes gain a key modicum of leverage in a system designed to control them.
However, with that being said, the changes outlined by the Fair Pay to Play Act are actually more limited in scope, especially considering some of the more ambitious pay to play models other economists have championed. The law doesn’t mandate any explicit structural reorganization on the part of the NCAA nor does it seek to designate athletes as employees, which forces universities to redistribute wealth in the form of wages. While athletes can make money off of their own NILs, the bill does not create any fixed arrangement for athletes to profit off of their labor but instead puts the responsibility in the hands of the students. The bill also states that a student cannot enter into a contract “if a provision of the contract conflicts with a provision of the athlete’s team contract.” In other words, if a school is sponsored by Nike, the athlete would not be allowed to be individually sponsored by Adidas. This conditional still places major bargaining power in the hands of the universities and the NCAA. As such, the bill will not completely upend the current system, nor does not mark an end to amateurism as we know it in the NCAA, which would require more legislation focused on extensive institutional change. Ultimately, the Fair Pay to Play Act signifies an ideological evolution away from the absolute amateur ideal, moving towards a more progressive, student-oriented conception of amateurism involving fair compensation. The bill also symbolizes a decisive victory against a corporate giant of the NCAA that has resisted change and withstood hundreds of lawsuits over the past few decades.
As of now, the Fair Pay to Play Act only applies to the state of California, a small percentage of the 1113 member schools under the NCAA control. The bill also does not go into effect until January 2023, giving the NCAA a lot of time to readjust and reorganize. Yet Governor Newsom remains hopeful. In an HBO interview, Newsom stated: “I don’t want to say this is checkmate, but this is a major problem for the NCAA. It’s going to change college sports for the better by having now the interests, finally, of the athletes on par with the interests of the institution.” Many other states, including Colorado, Kentucky, and New York, to name a few, began preparing similar bills. The Fair Pay to Play Act may very well be the stepping stones towards a national movement of disruption.
Bibliography:
Branch, Story by Taylor. “The Shame of College Sports.” The Atlantic, Atlantic Media Company, 30 Aug. 2019, http://www.theatlantic.com/magazine/archive/2011/10/the-shame-of-college-sports/308643/.
California (State). Legislature. Assembly. An act to add Section 67456 to, and to add and repeal Section 67457 of, the Education Code, relating to collegiate athletics. 383 — (S 206). 2019 Reg. Sess. (November 3, 2019). California State Assembly.
Eneriz, Ashley. “What Is Michael Phelps’ Net Worth?” Investopedia, Investopedia, 4 Dec. 2019, http://www.investopedia.com/articles/markets/080916/what-michael-phelpss-net-worth-vua.asp
Llewellyn, Matthew P., and John Gleaves. The Rise and Fall of Olympic Amateurism. University of Illinois Press, 2016.
Olympic Charter, 1983. Lausanne: Comité International Olympique, 1982. Print.
Parker, Tim. “What Does the NCAA Really Net from March Madness?” Investopedia, Investopedia, 18 Nov. 2019, http://www.investopedia.com/articles/investing/031516/how-much-does-ncaa-make-march-madness.asp.
Tynes, Tyler. “The Ripple Effects of California’s ‘Fair Pay to Play’ Act.” The Ringer, The Ringer, 11 Oct. 2019, http://www.theringer.com/2019/10/11/20909171/california-sb-206-ncaa-pay-college-players.
Zucker, Joseph. “Shabazz Napier Says He Goes to Bed Starving Because He Can’t Afford Food.” Bleacher Report, Bleacher Report, 3 Oct. 2017, bleacherreport.com/articles/2020901-shabazz-napier-says-he-goes-to-bed-starving-because-he-cant-afford-food.
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