If Cal­i­for­nia bill passes, changes could be on way

The Morning Call - - SPORTS - By Michael Marot

IN­DI­ANAPO­LIS — The NCAA wants a level play­ing field for all ath­letes, even if state law pro­pos­als threaten its long­time model for am­a­teur sports.

With the Cal­i­for­nia assem­bly con­sid­er­ing a po­ten­tially land­mark mea­sure that would al­low ath­letes at state col­leges and uni­ver­si­ties to profit from the use of their names, like­nesses and images, an NCAA work­ing group is try­ing to fig­ure out how to re­spond.

Some le­gal ex­perts be­lieve there is only one re­al­is­tic op­tion.

“I think the most likely out­come is that the NCAA mod­i­fies its rules to some ex­tent,” said Gabe Feld­man, di­rec­tor of the Tu­lane Sports Law Pro­gram. “Whether that’s enough to make Cal­i­for­nia back off, I don’t know. But if I had to guess, I’d say this is likely to lead to some [rules] changes.”

The NCAA Board of Gov­er­nors ap­pointed the 19-mem­ber work­ing group in May. Gene Smith, the Ohio State ath­letic di­rec­tor who co-chairs the group with Big East Com­mis­sioner Val Ackerman, is­sued a state­ment back then that re­in­forced the NCAA’s long-held po­si­tion: The com­mit­tee will not sup­port pay­ing stu­dents like school em­ploy­ees.

Three weeks ago, the group ac­knowl­edged it was dis­cussing chang­ing rules, poli­cies and prac­tices. It did not pro­vide specifics and the NCAA this past week de­clined to make mem­bers of the group avail­able for in­ter­views. For­mal rec­om­men­da­tions are ex­pected to be made at the board’s quar­terly meet­ing in Oc­to­ber.

Feld­man said he be­lieves the least con­tentious op­tion would be al­low­ing ath­letes to re­ceive some money.

Oth­ers are call­ing for more dras­tic changes.

“I think the en­tire sys­tem will have to change if this law passes,” said at­tor­ney Tim Ne­vius, a for­mer Univer­sity of Day­ton base­ball player and NCAA in­ves­ti­ga­tor who now runs a col­lege sports law firm. Since chal­leng­ing the NCAA with a fed­eral class-ac­tion law­suit over com­pen­sat­ing ath­letes, Ne­vius has be­come an ad­vo­cate of NCAA re­form.

“This is long over­due, too,” he said. “These are ba­sic economic rights that are af­forded to every sin­gle per­son not only in col­lege but in our coun­try and deny­ing ath­letes these rights is not only wrong, it’s stupid.”

The Cal­i­for­nia pro­posal would al­low ath­letes to earn money through en­dorse­ments and spon­sor­ships while pro­hibit­ing schools, con­fer­ences and as­so­ci­a­tions like the NCAA from en­forc­ing poli­cies that pro­hibit those pay­ments. It also says the NCAA can­not de­clare any school or ath­lete in­el­i­gi­ble for tak­ing the money.

The state Se­nate approved the bill 31-4 in May. At the time, state Sen. Nancy Skin­ner, the bill’s spon­sor, said NCAA rules “dis­pro­por­tion­ately harm stu­dents from low-in­come fam­i­lies” and are “par­tic­u­larly un­fair” to fe­male ath­letes. The bill faces a key test Fri­day, when an Assem­bly com­mit­tee will de­cide whether to ad­vance it or kill it.

If the bill ends up being signed into law by Gov. Gavin New­som, there could be a long, con­tentious court bat­tle.

Ne­braska law pro­fes­sor Josephine Po­tuto be­lieves the NCAA could use the U.S. Con­sti­tu­tion’s Com­merce Clause to re­tain con­trol over el­i­gi­bil­ity de­ci­sions.

That ar­gu­ment, Po­tuto said, could give the NCAA enough flex­i­bil­ity to let schools com­ply with Cal­i­for­nia law with­out risk­ing ex­pul­sion while al­low­ing the NCAA to de­clare in­di­vid­ual ath­letes in­el­i­gi­ble, a vari­a­tion from the gov­ern­ing body’s tra­di­tional tack.

“What the leg­is­la­tion does is in­con­sis­tent with the NCAA re­quire­ments,” said Po­tuto, who once chaired the NCAA’s com­mit­tee on in­frac­tions. “The Cal­i­for­nia schools are a mem­ber of the NCAA and when you’re a mem­ber of a club, you can try and get the rules changed. But you don’t get to be a mem­ber of a club and say I have dif­fer­ent rules that I’m op­er­at­ing by with­out the risk of get­ting ex­pelled by the club. So Cal­i­for­nia can reg­u­late by statute that its in­sti­tu­tions work to change the by­laws and that’s per­fectly fine. But to tell Cal­i­for­nia schools you can’t do it risks their mem­ber­ship.”

When the NCAA has op­posed pre­vi­ous state-level de­ci­sions or po­si­tions, it has de­clared those states off lim­its for cham­pi­onship events.

Delaware, Mon­tana, Ne­vada and Ore­gon faced this af­ter al­low­ing le­gal­ized sports bet­ting on sin­gle games, though that sit­u­a­tion changed af­ter the Supreme Court cleared the way for ex­panded sports gam­bling across the coun­try. Mis­sis­sippi and South Carolina were banned from host­ing cham­pi­onship events be­cause of con­tro­versy over use of Con­fed­er­ate flags. North Carolina was put on the list af­ter pass­ing a “bath­room bill” con­sid­ered anti-trans­gen­der and In­di­ana, where the NCAA is head­quar­tered and the host for Fi­nal Fours, faced a sim­i­lar re­sponse when it passed a “re­li­gious free­dom” bill.

North Carolina later re­pealed the bill and In­di­ana passed leg­is­la­tion clar­i­fy­ing the bill would not le­gal­ize dis­crim­i­na­tion.

Us­ing the same tac­tic against the na­tion’s most pop­u­lous state poses dif­fer­ent prob­lems. Ne­vius con­sid­ers it an empty threat and Feld­man par­tially agrees.

“I think it’s more chal­leng­ing when you’re deal­ing with Cal­i­for­nia than other states and when you have the Pac-12 in­volved,” Feld­man said. “I think It’s more dif­fi­cult when the NCAA model is con­stantly un­der at­tack, which is why I think pres­sure is there to loosen the rules be­cause if they hold on too tightly, they might lose con­trol, as the say­ing goes. And this might be the right time, too.”


A pro­posed Cal­i­for­nia law would al­low ath­letes, such as UCLA quar­ter­back Do­rian Thomp­son-Robin­son (1), to profit from the use of their names, like­nesses and images.

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