The NCAA Board of Governors wants California Gov. Gavin Newsom to reject a new attempt to pay college athletes.
And it is prepared to take the fight to court if necessary.
In a six-paragraph letter released Wednesday, the board urged Newsom not to sign the legislation known as the Fair Pay to Play Act, which would allow college athletes to be paid for the use of their names, likenesses and images. The move comes two days after approval of the measure by the California Assembly, with the state Senate expected to consider the measure later this week.
The board warned that California schools may be declared ineligible for NCAA competition if the bill becomes law because they would have an unfair recruiting advantage.
“We’ve explored how it might impact the association and what it might do. We believe it would inappropriately affect interstate commerce,” Donald Remy, the NCAA’s chief operating officer and chief legal officer, told The Associated Press. “It is not intended to be a threat at all. It’s a reflection about the way California is going about this.
“I’m not saying there will never be a day we would consider that (legal action), but it is not meant to be a threat,” Remy said.
The board is especially concerned because the bill puts no restrictions on how much athletes could make. The Indianapolis-based NCAA said the measure would impact more than 24,000 athletes in the nation’s most populous state.
Should the bill pass, Newsom would have 30 days to sign or veto it. If he does nothing, the bill would become law. It would be the first measure of its kind and the outcome is being closely watched as one of the biggest challenges in years to the NCAA’s longstanding and far-reaching model of amateur sports. Over the past decade, that model has come under increasing pressure—and attacks in court—as critics push for big-time college athletics to clear the way for the athletes themselves to benefit financially.
NCAA rules prohibit athletes from profiting off their athletic skills. The organization, however, has recently begun considering rules changes to loosen those restrictions, though NCAA President Mark Emmert—and the board again on Wednesday—insist that players cannot be paid or become the equivalent of a university employee. Formal recommendations are expected to be made at the board’s October meeting.
It appears there is an appetite for significant changes.
“The rules that we operate under, many of which date to 1975, may not be suitable for us in 2021 with the challenges and opportunities student-athletes face,” said Denis McDonough, an NCAA board member and the White House chief of staff under President Barack Obama. “So we are and have been taking a very close look at how we can modernize those rules. We’re hoping the state of California would recognize that modernizing those rules for student-athletes across the country is the best way to do that.”
Board members met with the working group studying these issues in August but neither McDonough nor Remy would discuss specific proposals.
The NCAA believes the California measure would violate the federal Commerce Clause and may not withstand a legal challenge; Remy cited a previous case in California in which the state tried to inhibit the NCAA from enforcing its rules. The NCAA won that case.
Should the measure pass, Remy said, the NCAA would penalize the schools, not individual athletes.
“There are two parts to this and part of this is the membership and that includes the California schools,” Remy said. “Schools and universities agree to comply with the rules of (NCAA) membership and there are a set of eligibility criteria that go along with being member institution. The California schools have consented to that criterion. So in that context it would be the schools that would directly impacted.”