Stu­dent ath­letes’ com­pen­sa­tion should re­quire grad­u­at­ing

The Morning Call - - TOWN SQUARE -

Cal­i­for­nia Gov. Gavin New­som re­cently signed into law the Fair Pay to Play Act, which per­mits stu­dent-ath­letes to re­ceive name, like­ness and image com­pen­sa­tion.

Read: en­dorse­ment deals.

This rule ap­plies to all Cal­i­for­nia col­leges and uni­ver­si­ties, pub­lic or pri­vate. Other states, in­clud­ing Penn­syl­va­nia, are con­sid­er­ing sim­i­lar leg­is­la­tion. State Reps. Dan Miller and Ed Gainey, both Al­le­gheny County Democrats, are craft­ing a bill of this na­ture for our com­mon­wealth.

Penn State foot­ball coach (and fel­low East Strouds­burg Uni- ver­sity alum­nus) James Franklin re­cently stated as a hy­po­thet­i­cal that for “image and like­ness,” stu­dent ath­letes might “av­er­age about $65,000 per year,” a num­ber also used by Univer­sity of Ken­tucky pro­fes­sor John The­lin shortly after the O’Ban­non v. NCAA case. The ac­tual pay­out will ex­ceed $65,000 for some col­lege ath­letes, while be­ing far lower for most.

The first pos­si­ble le­gal is­sue to arise: the dor­mant com­merce clause. Con­sid­ered by the U.S. Supreme Court as im­plied in Ar­ti­cle 1, Sec­tion 8, Clause 3 of the Con­sti­tu­tion, it pro­hibits states from pass­ing leg­is­la­tion that im­pedes upon in­ter­state com­merce. Cal­i­for­nia has al­ready in­ter­jected its own views that led to con­sid­er­able na­tional im­pact, such as so­cial stud­ies text­book con­tent. But with the Fair Pay to Play Act, are we left to as­sume that all states will al­low their 19-year-old stu­dents to take in wind­fall in­come while wear­ing that school’s col­ors, us­ing their train­ing fa­cil­i­ties and be­ing trained and treated by their staff? Doubt­ful.

Would a court see Cal­i­for­nia as im­ped­ing on an­other state’s com­merce here? Hard to say.

An­other thing that comes to mind is Ti­tle IX. As the U.S. Depart­ment of Jus­tice ex­plains, it is the law that “pro­hibits dis­crim­i­na­tion on the ba­sis of sex in any fed­er­ally funded ed­u­ca­tion pro­gram or ac­tiv­ity.”

Ti­tle IX com­plaints prob­a­bly won’t go too far in com­bat­ing the Cal­i­for­nia law. Twenty years ago in Davis v. Monroe County, the U.S. Supreme Court held that “the gov­ern­ment’s [Ti­tle IX] en­force­ment power may only be ex­er­cised against the fund­ing re­cip­i­ent … we have not ex­tended dam­ages li­a­bil­ity un­der Ti­tle IX to par­ties out­side the scope of this power.” So, Nike can­not be made to pay for a Ti­tle IX vi­o­la­tion. They are not re­ceiv­ing the fed­eral dol­lars for ed­u­ca­tion pro­grams; the univer­sity is.

Sev­eral ques­tions do re­main, though. For ex­am­ple, how far can a school go to ad­dress dis­parate im­pact that fe­male stu­dent ath­letes may per­ceive after learn­ing about the sweet en­dorse­ment deals that male stu­dent ath­letes are get­ting? If the eco­nomic play­ing field is made even more un­equal for, say, men’s and women’s bas­ket­ball, how do you think the en­vi­ron­ment on cam­pus will be? In such a case, what re­spon­si­bil­ity does the univer­sity have in ad­dress­ing the dis­par­ity? If a re­spon­si­bil­ity ex­ists, how can they ad­dress it?

One thing of­ten left out of these con­ver­sa­tions is the mat­ter of grad­u­a­tion suc­cess rate. As de­fined by the NCAA: “first-time full-time fresh­men in a given co­hort” mem­bers are counted “as aca­demic suc­cesses if they grad­u­ate from their in­sti­tu­tion of ini­tial en­roll­ment within a six-year pe­riod.”

The lat­est male grad­u­a­tion suc­cess rate is 82.6%; for women, it is 92.3%. Ques­tion: Will en­dorse­ment deals in­crease or de­crease a 20-year-old’s like­li­hood to find do­ing his school­work im­por­tant? I’ll let you fig­ure that one out.

Some of you are still think­ing: “The big­ger schools make mil­lions off of these kids. Why should stu­dent ath­letes be ex­ploited? Give ’em a fair cut.”

Be­fore our Western state reps go any fur­ther, they should work with col­lege ath­letic de­part­ments on com­pelling in­dus­try to rec­og­nize that ath­letic prow­ess usu­ally en­joys a short shelf life. Make them see the wis­dom in per­haps mak­ing any com­pen­sa­tion con­tin­gent upon de­gree com­ple­tion.

If the money earned ex­ceeds the schol­ar­ship — since such en­dorse­ments could plau­si­bly re­place tra­di­tional schol­ar­ships in some cases — ad­di­tional rev­enue gen­er­ated could be put into a trust fund. Stu­dent ath­letes would only have ac­cess to those funds upon grad­u­a­tion.

If a banker’s em­ploy­ment con­tract might stip­u­late no bonus if you fail to meet a tar­get dur­ing the fis­cal year, what is wrong with mak­ing the stu­dent earn the de­gree for their ex­tra sup­per? This al­lows stu­dent ath­letes to get their fair share after com­plet­ing what should be the pri­mary ob­jec­tive for col­lege stu­dents — to get a de­gree.

Could the NCAA and the other par­ties in­volved work with an idea like this?

This could be a good way of keep­ing those grad­u­a­tion suc­cess rates up and the fo­cus on mak­ing the stu­dent ath­lete a stu­dent first, an ath­lete sec­ond. Other­wise, these tal­ented teens and 20-some­things might do well to forego their stud­ies all to­gether and join a sports league or club in Canada or Europe where NCAA rules would not ap­ply.

Let’s not make a com­plete mock­ery of the pri­mary mis­sion of col­leges or uni­ver­si­ties — ed­u­ca­tion.

Christo­pher Brooks, a pro­fes­sor of his­tory at East Strouds­burg Univer­sity, had served as the col­lege’s NCAA fac­ulty ath­letic rep­re­sen­ta­tive.


Penn State run­ning back Devyn Ford (28) gains yardage against Pur­due dur­ing a foot­ball game in State Col­lege on Oct. 5.

Christo­pher Brooks

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