Student athletes’ compensation should require graduating
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.