After word broke around 10 a.m. ET Monday that California governor Gavin Newsom signed into law SB 206, the historic bill that would allow college athletes in the state to profit off their name, image, and likeness and sign endorsement deals despite NCAA rules forbidding them, Pennsylvania state representative Dan Miller sensed an opportunity. He phoned Ramogi Huma, the former UCLA college football player and executive director of the National College Players Association, who helped push through the California legislation. Miller consulted with Huma on possible next steps for his state. By 2:20 p.m., Miller and Pennsylvania House member Ed Gainey, a fellow Democrat, circulated a bill, the Pennsylvania “Fair Pay to Play Act,” which will “capitalize on recent efforts in California to help balance the scales and allow our college athletes to sign endorsement deals, earn compensation for their name, image, and likeness, and sign licensing contracts that will allow them to earn money,” the lawmakers wrote in a memo. Miller and Gainey are seeking a bipartisan group of legislatures to sign onto the bill before formally introducing it. The California law, also known as the “Fair Pay to Play Act,” passed both the Assembly (73-0) and the Senate (39-0) without a single no vote.
Miller and Gainey join the ever-growing chorus of state and national legislators who don’t understand why college athletes, many of whom participate in sports that deliver millions of dollars to their schools’ bottom lines, can’t receive a fairer economic shake. To them, restricting compensation amounts to discrimination against college athletes — it’s near impossible to name another group of people who are prohibited from financially benefitting from their unique talents. If the NCAA won’t change its rules, California, where the legislation goes into effect in January of 2023, has shown that lawmakers can step in.
“The California success is sort of the ringing of the bell that we need to tilt this conversation into common sense reality,” Miller tells TIME. “The future is starting in California. It’s time to roll. Let’s get Pennsylvania in play.”
The Keystone State has company. Also on Monday, the Democratic leader of the Florida House filed a bill mimicking the new California law, which also states that NCAA or its member schools can’t deem players profiting from third-party agreements ineligible, nor prevent schools that allow such agreements from participating in intercollegiate athletics. New York Senate Bill S6722A, the “New York Collegiate Athletic Participation Compensation Act,” says that earning money from one’s name, image, and likeness “shall not affect the student’s scholarship eligibility.” Two South Carolina state senators plan to file a bill similar to the California law when the General Assembly resumes in January.
“I imagine you’ll see dozens more in the next few months,” says Newsom, who, in a masterstroke of political theatrics, signed the bill on HBO’s The Shop, which is executive produced by and stars LeBron James, a vocal proponent of paying players and one of the most well-known and popular humans on the planet, never mind California, where he’ll soon begin his second season with the Los Angeles Lakers. “This is nation-state, California,” Newsom says. “This is not a small, isolated state. This is a game changer.”
A game changer that the NCAA and college sports conferences are stubbornly refusing to embrace. They argue that a patchwork of state laws governing compensation rights will bring chaos to college sports, and “and make unattainable the goal of providing a fair and level playing field,” according to an NCAA statement released after Newsom signed the California bill.
This argument rings hollow, since college sports already sit on an uneven playing field. “The belief that talent is fairly evenly distributed across the country is blatantly false,” says sports economist Andy Schwarz, a supporter of the California law and a co-founder of the startup Historical Basketball League, which plans to offer six-figure compensation packages and scholarship benefits to college-aged players who want to eschew the economically restrictive NCAA. Schools like Alabama, Clemson, and Georgia in football, and Duke and Kentucky in basketball, consistently sit atop the coaches’ polls. They already provide resources, like gleaming facilities and reputations for churning out pro players, that schools at the lower rung of Division 1 sports can’t offer. “Alabama is probably a better path into the NFL, and that’s way more valuable for most athletes,” says Schwarz.
If Alabama starts losing recruits to UCLA since players can sign endorsement deals in California, Alabama can keep up with California by changing its laws. One could imagine Nick Saban, the highest-paid public employee in a football-mad state, as an effective lobbyist.
The Pac-12 conference, in a statement, said that California’s new name, image, and likeness law will “lead to the professionalization of college sports.” This protest is farcical, as many major college sports programs pay out multi-million dollar salaries to coaches, fill 100,000 seat stadiums on Saturdays, and bring in millions in sponsorship, media, and other revenues. The athletic programs at Ohio State University and Texas A&M, for example, brought in north of $200 million in revenue during their 2018 fiscal years. College sports are already professionalized, and allowing players to sign endorsement deals won’t damage the supposed purity of “amateur” college sports and turn off fans. Critics made similar arguments when the Olympics started allowing professionals to compete in the 1980s. Fans were purportedly so attached to the amateur ideal, that they’d reject the Games. Well, Michael Phelps and Usain Bolt seemed to do O.K. NBC has spent billions on Olympic rights.
And unlike the Olympics, college football offers Saturday tailgates, which attract enthusiasts under any state compensation law. The 11 a.m. beer and sausage will still taste good, even if the starting linebacker stars in a Tuscaloosa Toyota ad.
On Sept. 11 — the same day SB 206 passed in the California legislature — the NCAA argued in a letter to Newsom that the California law was “unconstitutional.” Legal experts, however, question the evidence for this claim. Since no federal law prohibits college athletes from receiving an endorsement deal, the state law violates no federal statute. A law that offers economic benefits to a subset of the population doesn’t seem to violate any inalienable rights.
In the same letter, the NCAA said that the law would eventually result in California schools “being unable to compete in NCAA competitions,” even though the new state law prohibits such a ban. Such proclamations seem like posturing, since not only would losing the California market damage the NCAA financially, but a ban would also carry legal risks. “It’s retaliatory not to allow college players to benefit from the state law,” says California labor lawyer Angela Reddock-Wright, founder and managing partner of Reddock Law Group. Plus, the NCAA made similar threats some 35 years ago, only for the strategy to backfire. The organization threatened to ban a group of schools who wanted to negotiate their own football television contracts. The schools sued, and the Supreme Court ruled in their favor. “The mere threat of banning schools for not going along with collective financial restraints would seem to be dubious,” says Marc Edelman, a professor of law at Baruch College’s Zicklin School of Business. (TIME reached out to the NCAA for an interview, a spokesperson referred us to the letters and statements cited in this story).
The NCAA should shelve the arguments against name, image, and likeness compensation and just embrace the many potential benefits. For one, schools could consider the California model a reasonable compromise, if not a victory, on player compensation, since the schools themselves won’t be on the hook for payments — those other third-party companies are making the deals.
And while a star quarterback for UCLA or USC may profit most under this name, image, and likeness law, female athletes — who are afforded far fewer opportunities to make substantial money in the pros — could cash in too. “College is the time when these women athletes have the spotlight on them,” says California State Senator Nancy Skinner, one of the co-sponsors of the law. She points to former UCLA gymnast Katelyn Ohashi, whose jubilant floor exercise routine went viral in January, attracting over 64 million YouTube views. “What other human on the planet wouldn’t have been able to monetize their 60 million Youtube followers?” says Skinner. “Only the student athlete.”
This law promotes fairness. Gainey, the Pennsylvania House member who signed on to co-sponsor that state’s Fair Pay To Play Act, says he’s seen too many constituents and friends return to Pittsburgh after playing college sports, with too little to show for it. He’s met too many African-American athletes from disadvantaged areas, he says, not quite good enough to make it to the NBA or NFL, who couldn’t financially benefit from their sports in college, when their athletic value was at its peak. He’s witnessed too many opportunities lost, never to return. “California gives us hope that there’s a level of justice we can get to,” says Gainey. “At the same time college athletes are helping schools make millions, let them help themselves. Let them make some money.”
Write to Sean Gregory at [email protected].