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CA Law resolution: Time to send in the feds?
Matt Brown
October 04, 2019
Good morning. Thanks for sharing a few moments with Extra Points today. There’s been so much going on that I figured I’d throw in an extra newsletter in your inboxes.
Federal resolution to likeness rights coming?
The huge news in college football over the last few days has been about SB 206, the legislation just signed into law in California that allows college athletes to sell their likeness without penalty from their school or the NCAA.
The one thing college administrators have constantly said they really didn’t, a bevy of different states, all with their slightly different amateurism rules, is already starting to happen. Maybe the passage of SB 206 helped state legislators realize their true passion for economic justice. Maybe they feared ol’ Home State U would be a recruiting disadvantage to UCLA, so they figured they better pass some laws.
Whatever the reason, states are proposing copycat legislation so fast I can barely keep up with everything. Over the last few days, Nevada, New Mexico, Ohio, Pennsylvania and Minnesota, to go with South Carolina, New York, Illinois and Florida, have all had a state legislator indicate they plan to propose similar legislation. I’ve been told a few more states could join them in the coming weeks.
Even if all of those bills don’t pass, that’s already basically a huge chunk of population. Running a national system where different states or leagues have different rules is possible…we have leagues that don’t give athletic scholarships (like the Ivy or Pioneer) compete with leagues that do, and national corporations have figured out how to navigate different state level labor laws, but a national policy would unquestionably be easier for everybody.
The NCAA would like to set the terms on what that policy would look like. But you know who might beat them to it? The feds.
Ohio Republican Anthony Gonzalez, a former Ohio State standout (I remember rooting for “Gonzo” back in the day) and NFL wide receiver, is looking into proposing national legislation. Via ESPN:.
"I actually think that we need to do something quickly, within the next year," Gonzalez told ESPN. "I don't think you have three years to figure this out. I think decisions will start happening immediately.
"He said he wants to create legislation that gives athletes the chance to make money while also setting up some way to protect athletes from what Gonzalez described as "bad actors."
…
Gonzalez said he has had informal conversations on the subject with Ohio State athletic director Gene Smith, the co-leader of a working group assembled by the NCAA to evaluate ways in which the association could change its rules on name, image and likeness rights. Smith is expected to report the group's recommendations to the NCAA's board of governors at the end of October.
Gonzalez isn’t the only congressman looking into this. North Carolina Republican Mark Walker also proposed a bill, one currently sitting in the Ways and Means committee. It’s unclear which bill is most likely to advance, or if they will combine in some way.
Gonzalez, as somebody closer to Ohio State AD Gene Smith, is more likely to give the current NCAA process the benefit of the doubt than perhaps other politicians, but Smith’s public comments haven’t exactly signaled a willingness to make too many concessions.
It’s so shocking to me, in this bonkers political environment, that this is an issue that has achieved true, legitimate, bipartisan support. The NCAA could have probably taken a greater leadership role in figuring out what a likeness rights policy might look like, but they’ve dragged their feet, and now risk losing leverage to lawmakers, or perhaps judges.
Like, does this make you think the NCAA leadership understands how dire this situation is? Here’s NCAA president Mark Emmert, talking to the Indy Star:
Would the NCAA ever go as far as the California law?
"The complete elimination of rules is not acceptable," he said. "You simply can’t have a successful athletic association when we don’t have any rules in place… and you can’t control the behavior of third party systems.
"What is the most extreme impact on college sports that you see as possible under the California law?
"This is just a new form of professionalism and a different way of converting students into employees," Emmert said. "(They may be) paid in a fashion different than a paycheck, but that doesn't make them not paid."
People say stuff until they don’t, especially at the NCAA, but this certainly doesn’t strike me especially encouraging stuff, if you’re hoping for some good-faith bargaining.
Maybe some of this conflict is generational?
I thought Dan Wolken over at USA TODAY actually brought up an interesting point. Perhaps there is some friction in how senior NCAA and college leadership is handling this crisis.
Everyone is waiting for a working group on name, image and likeness issues led by Big East commissioner Val Ackerman and Ohio State athletics director Gene Smith to issue recommendations by the end of October, but the bellicose tone of Smith’s recent public statements has led to some concern among administrators that any proposal won’t go far enough to satisfy California and a host of other states poised to adopt similar legislation.
….
One administrator who took in the comments from Smith, Delany and others this week saw this playing out rhetorically as a battle between the old guard of NCAA leadership which stands to benefit most from fighting for the status quo and a younger generation that is fearful of the NCAA screwing this up so badly that they won’t have any leverage left to dictate their own policies by the time legislators get done with them.
As one official put it, it really shouldn’t be this difficult to find common ground and employ some realistic name, image and likeness rules that are fair to the athletes while preserving the basic tenets of the collegiate model. And many of the administrators who plan to work in college athletics 20 years from now are not only open to the idea of significant freedom on name, image and likeness rights, they see it as an inevitability they’d rather have a hand in shaping as opposed to having it dictated by Congress or the Supreme Court after millions of dollars in legal fees spent fighting it.
Guys like Gene Smith, Michael Drake, Barry Alvarez, John J. Degioia and Bob Bowlsby, either members of the likeness committee or highly vocal critics, are well past 60. They’ve mostly been involved in athletics administration for a long time. And while seasoned institutional leadership can have a lot of positives, it can also make seeing the need for transformational change pretty difficult.
By the time the rubber really the road on likeness rights, many folks currently in the top of athletics administration will be retired. Can the next generation of leaders help negotiate a more lasting peace? Or will we have more doomsday rhetoric and a long, ugly, fight?
And as the L.A. Times reminds us, uh, well, that doomsday rhetoric ain’t exactly new.
The high-profile legislation provoked a furious response.
One college athletic director warned the law would be the “death knell” for his program.
A conference commissioner called it “absolute bankruptcy.”
The executive director of the NCAA issued a dire warning: “The possible doom of college sports is near.”
More angst over California’s law allowing college athletes to profit from their name, image and likeness?
No. Those apocalyptic predictions came almost five decades ago in response to Title IX, the landmark legislation that mandated equal opportunities for women and men at schools that receive federal funding.
You can only cry wolf so many times. We should be past the point of taking those threats seriously now. The time is to seriously engage with lawmakers and come up with real proposals, so solutions can be built outside of the courtroom as much as possible, and as quickly as possible.
After all, we’d like to write about actual football games too.
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