Is NIL legislation even constitutional? What happens next? An interview with Len Simon

I asked one of the legal experts who helped with SB 206 what the heck happens now

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There’s been a flurry of updates around athlete likeness legislation and policy, thanks to the NCAA’s working group announcing…well, not a lot, but everybody paid attention. I’m going to have a more detailed explainer/next steps story for SBNation.com in the next 24-36 hours, but I had something I wanted to share with all of you first.

Are we sure this is all even constitutional?

The NCAA certainly doesn’t think so. One man who does, however, is Len Simon.

Len Simon is an attorney and an Adjunct Law Professor at the University of San Diego. He worked with California State Senator Nancy Skinner on SB 206, and he absolutely thinks this legislation is constitutional.

The main legal argument against SB 206 appears to rest on the interstate commerce clause. Here’s what Simon wrote to California Governor Gavin Newsom about that:

From press reports, it appears that the NCAA will rely on Miller v. NCAA, 10 F.3d 633 (9th Cir. 1993), a case in which Nevada legislated mandatory and substantial changes in the NCAA’s procedural rules for adjudicating disciplinary cases. As the Court pointed out, the Nevada law was so overreaching that, “[t]he NCAA cannot avoid complying with the statute by simply expelling its [Nevada] members.” Here, of course, the NCAA may do exactly that, and has threatened to expel the California universities from championships.

Indeed, the above quote from Miller makes clear why SB 206 is valid – the bill essentially regulates the California universities, not the NCAA. California can legislate its rules, and he NCAA can adjust, compromise, or stand pat and force the California schools out of the NCAA or its championships. It has three years to choose. California is not burdening interstate commerce, it is simply protecting its students and requiring its schools to act appropriately toward those students, even if that requires a showdown with the NCAA.

I had a chance to chat with Mr.Simon, about this argument, and what happens next in this process. It was conducted on October 16, so a few things have changed since then, stuff we’ll address in additional newsletters, and on SBNation.com

Matt Brown: So let me ask you something first. I have noticed in the few weeks after SB 206 passed that we’ve seen several other states have... Representatives proposed similar legislation, and I know that the NCAA has their working group that’s scheduled to give an update this month. Do you think it is an inevitability that we’re headed towards a formal legal challenge to California’s Likeness Law, or do you think it’s possible there could be some administrative compromise before it gets to the courts?

Len Simon: There’s a three year effective date in California. The NCAA could.try to  sue tomorrow and say, “This law is invalid.” But that would be premature because the law hasn’t taken effect yet. If they go to  court, sometimes you win, sometimes you lose, but. I believe they would lose.

But I think are more likely to bide their time and let the working group do its work and come out with a proposal that they were comfortable with.  We would then see what the other states do, see if there’s any comment from Gavin Newsom or Nancy Skinner, and any attempt to get to a resolution or compromise – something that the the NCAA and California think they can live with.

Matt: I remember seeing another lawyer comment that the proliferation of numerous state level bills could actually help the NCAA’s argument in a hypothetical court case by saying, “Listen. If we have nine different state bills, and they’re all slightly different, and what’s being proposed in Florida and Pennsylvania is not necessarily identical to California, that that might help their argument, saying, “We can’t possibly navigate this many different rules. We need to strike down California’s.” Do you think that that is possible or premature?

Len: I think a suit about the California bill would be premature, and I don’t think the threat of other bills means much yet.  It took almost nine months for California to pass the bill, and so it may take a long time for other states to pass bills, or they may never do it. And the bills that pass, if any, may be identical to California, or a little different, or a lot.  So, I think point number one is, yeah, it’s premature to get really serious about this point, but people should always plan. So point number two is yes, if nine states pass laws and they’re all quite different, the NCAA will argue that this is additional grounds for their commerce clause argument. I still think they’re going to lose. And as I said it in my letter to the governor, I think the states are on exceptionally strong ground with regard to their own state universities, and  on pretty strong ground with regard to the privates.  

What I mean is that the South Carolina could pass a law and say, “We want the other  schools in South Carolina to allow their students to monetize their name, image and likeness.”  And Pennsylvania could choose a different approach. It’s a challenge for the NCAA, but South Carolina has to right to tell its state universities how to treat their students, as does Pennsylvania. 

How can you second guess them as to schools they run and fund? So the problem is the NCAA’s problem, and if they want both South Carolina and Penn State to remain as members, they will have to follow these laws and allow the more liberal approach if they want a unified national rule. But don’t get me wrong, I think even as to the private universities, the NCAA will lose this fight. If they don’t like the law in a state, they can kick all those schools out, or they can choose not to regulate NIL. The states are saying that students in that State have certain fundamental rights that can’t be abridged by their universities or anybody else. 

Imagine if NIL rules were in place in various states when the NCAA was formed.  The organization has no right to tell the universities to ignore state law; if they want a 50 state NCAA, they have to live with the rules. Or not allow members from a State with unacceptable rules.  

Matt :I’ve tried to follow some of the state-by-state bills. My understanding, for example, for South Carolina is that that bill is probably unlikely to pass. It’s being proposed by two Democrats. The most powerful football figure in the state seems relatively opposed to any kind of compensation change, and the Republican Speaker of the House said, “We’re probably not even gonna vote on this,” but are you aware of any, of any state right now that you think is more likely than maybe the others to actually pass something?

Len: No, I really don’t have any information on that. It’s a safe bet that states that are controlled by Democrats are a little more likely to follow California than states controlled by Republicans, but it may also depend on what universities you have in your state and how they feel about it. I saw that Bill Self and Coach K made pretty forward-thinking, moderate comments on the subject, saying that there was a need for change. And if officials at Kansas State and officials at UNC felt the same way, those might be states where you could get further because you didn’t have leading people at the states’ major universities vociferously arguing that it was a mistake. I don’t really have any specific information on the other states, except if you went to some kind of a statistical analysis, I think you would find that the percentage of bills put in the hopper in a state legislature that actually passes is  a small percentage.

Len: I should add that I think the NCAA is wrong to  argue that if there are different state rules on NIL they can’t abide by them all, but of course they can, by adopting the most liberal rule.  None of the proposed legislation puts a ceiling on NIL, only a floor. The precedent the NCAA refers to , Miller vs. NCAA, is a case where Nevada tried to tell  the NCAA how to conduct a hearing. This really is different, because the states are telling the universities, “You are required to treat your students this way.” They are not requiring the NCAA to do anything.  It would be as if, back in the Jim Crow era, California passed a law that said college sports teams had to be open to all races. Can the NCAA challenge the law because Mississippi has the opposite law? No way.  California can protect its students. Period. End of story. The NCAA has to find a solution, not reject the state law.  

Len:  Some people are predicting this is the beginning of the end of the NCAA. I don’t really think so, but it illustrates the fact that there’s nothing in the California bill that tells the NCAA how to do its job. It simply provides for an area that’s out of bounds.

Matt: In my opinion, I’ve noticed that a lot of the arguments against this legislation, either from the NCAA or from university officials or from maybe a few predictable commentators, have not always been in the best of faith. I’m curious if you’ve seen any arguments against CA or similar legislation that you think may have some merit?

Len: I think on anti side, and I said this in my written comments to the NCAA’s working group,  the only thing worth talking about is recruiting. To me, there’s no problem with NIL, there’s just an existing problem with recruiting, and some fear that the problem will get worse.  Why would there be all this talk about the Cadillac dealer in Tuscaloosa who’s going to slip money to an Alabama football recruit through NIL if it wasn’t happening already. Same with Nike deals, they’re cheating already.  So if the NCAA wants to create reasonable rules to limit improper recruiting through with NILs, I would not necessarily object. That’s an argument that you have to at least think about and work through.

I proposed in my paper to the  NCAA working group that they prohibit NIL deals from being agreed upon while students are still in high school and maybe even until they show up at college and register That would solve a great deal of the recruiting concern.    If the next. Zion could not ink an NIL deal until he showed up at Duke, I don’t have a problem with that. Will people cheat? Well, they already cheat, and actually bringing these payments out in the open should limit cheating.  If Zion can’t earn a nickel while he plays at Duke, the risk is greater that he will be offered or accept money under the table. If the money is coming wherever he attends, the cheating is less likely and less effective. How can NIL say the  system will get worse with NIL if the current system generates criminal trials and convictions, making assistant coaches and others into felons.  

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