‘Like lighting a fuse’
Wolken: Name, image, likeness and colleges
The NCAA has spent much of the past decade getting dragged into court and being lampooned by critics. It has survived a failed attempt to unionize college athletes and avoided any type of boycott that has long been talked about but never actually organized. Generally speaking, the NCAA was allowed to exist as it ever was – all too happy to play the villain and the fool in defense of its outdated policies, as long as the money rolled in and the government stayed off its back.
But almost like a light switch flipping on in the middle of the night, the political environment around the rights of college athletes shifted completely in a matter of a few months. An issue that had been largely kept on the margins – whether college athletes should be allowed to profit off their name, image and likeness – was suddenly activated as a key legislative priority in California with the Fair Pay to Play Act, spreading to other state legislatures that introduced similar bills and renewed interest at the federal level that could lead to legislation in the near future.
“It wasn’t until California passed it in their state legislature that this thing, I mean, it’s like lighting a fuse,” said Rep. Mark Walker, R-N.C., who introduced a bill in March that would strip the NCAA of its tax-exempt status unless it allowed likeness rights. “It took off.”
The NCAA has read the tea leaves and responded, announcing last month that it had voted to allow athletes to “benefit from the use of their name, image and likeness in a manner consistent with the collegiate model.” While the specifics of that plan are to be determined, and might ultimately not satisfy lawmakers, NCAA president Mark Emmert acknowledged that political pressure pushed the NCAA to make this move. Why now?
“There had been a number of athletes’ rights bills in California that (advocacy groups) had tried to push in commission, and this one caught fire because name, image, and likeness is a pretty basic right in the law,” said former congressman Tom McMillen, who is now president and CEO of the LEAD1 Association that represents the 131 athletics directors at Football Bowl Subdivision schools. “When the bill passed unanimously, it fueled the fire in other states. If you’re a young legislator and want to get your name out there, put that bill out there because it has a lot of support. I think that’s how the groundswell started.”
But whereas the NCAA might have hoped early on that California was a one-off, this issue has resonated with both Democrat and Republican legislators in a diverse group of states. While bills have already been proposed in Illinois, Florida, Washington and Colorado, at least 10 more are likely to jump on board in the coming weeks.
For Sen. Chris Murphy, D-Conn., who in March published the first in a series of reports calling on the NCAA to compensate athletes, the political momentum is an outgrowth of Congress seeing the skyrocketing commercialism of college athletics and, like many NCAA critics, growing less comfortable with the idea that coaches and administrators are getting rich off that success while the athletes aren’t allowed to profit.
“The stadiums got so much bigger, the shoe companies got richer, the training facilities are getting ridiculously lavish,” said Murphy, who has committed to work with Sen. Mitt Romney, R-Utah, and Sen. Marco Rubio, R-Fla., on legislation. “The whole thing just looks more professional than professional sports and yet the kids were ending up poor with brain damage. That just doesn’t seem right, and I think it’s increasingly hard for Congress to ignore that and that’s why you’re seeing some bipartisan support for NCAA reform. It’s a scandal sitting right in front of our eyes.”
There’s also an element of the NCAA being hoisted by its own petard. You know the NCAA’s ubiquitous tag line about how nearly all of its athletes will “go pro in something other than sports?” Well, some of them end up going pro in politics.
California Gov. Gavin Newsom and Florida Gov. Ron DeSantis played college baseball at Santa Clara and Yale, respectively. State Rep. Emanuel “Chris” Welch, who introduced the Illinois bill, played baseball at Northwestern. A bill in Michigan that was just introduced Wednesday is co-sponsored by state
Reps. Brandt Iden, a former tennis player at Kalamazoo College, and Joe Tate, who played football at Michigan State and in the NFL. And Rep. Anthony Gonzalez, R-Ohio, a former Ohio State and NFL football player, said recently he would propose a bill in the House.
“Timing-wise, it’s critical that our governor was a college athlete, so he understands it,” said state Rep. Chip LaMarca, who is co-sponsoring the Florida proposal. “The governor likes the issue and the speaker of the house likes the free market perspective of it. He doesn’t think they’ve been treated as anything other than unpaid labor. So we have to take advantage of having as much of the team together as we can.”
But it’s also unlikely that so many politicians would pursue this if it was a wildly unpopular idea. Over time, opinion polls have shown that Americans increasingly agree with allowing college athletes to profit from their name, image and likeness, including a recent Seton Hall poll that showed a 60% to 32% split. Even more telling is that 80% of respondents ages 18 to 29 were in favor.
Illinois Gov. J.B. Pritzker compared the undercurrents in public opinion to how the country has shifted on issues like gay marriage and marijuana legalization, which became much more popular after states began to look more closely at them.
“A year after the first few cases that occurred, you saw the polling data change. It went from 40-60 against to 70-30 in favor in a very short period of time because people woke up and paid attention,” said Pritzker. “Even some conservatives came around and said, ‘Yeah if you’re all about individual freedom, why shouldn’t people have the freedom to marry one another?’ I think this issue of whether a college athlete should get compensated for their image and likeness, whether it’s OK for a college athlete to get any money, it’s an issue that has kind of been in the back of people’s minds and then over the last year there’s a lot of attention put on it.”
And, in fact, one of the primary reasons why the NCAA is boxed in on this issue politically is that support for name, image and likeness rights has generally crossed party lines. While there might not be overwhelming support for any legislation that might happen on a federal level, the fact that there are high-profile senators from the both sides of the aisle involved in this means the NCAA can’t expect one party or the other to help them out.
“Part of this is just non-political, and the interest I think is generated by sports fans in Congress, but there’s a civil rights aspect to this,” Murphy said. “These are largely African American players that are being kept poor in order to enrich white athletic directors, coaches and sports company executives. But there’s also a free market element to this discussion. There’s no other marketplace in the country in which the people providing the labor should be compensated millions of dollars and are instead being given no salary. So if you’re a free market Republican it’s hard to defend this system, and if you’re a civil rights Democrat it’s hard to defend this system.”
And in the end, the NCAA seems to have lost the most important of this: the messaging war.
While phrases like amateurism and fears about non-revenue sports getting cut might have once been stuck in the public’s mind whenever the topic of college athlete compensation came up, Walker said the public has now begun to understand the difference between likeness rights and colleges paying salaries.
“At first we got crushed. They beat us in every avenue and we kind of anticipated that,” said Walker, the North Carolina congressman. “But with some of these states taking a look at it, we’ve been able to push back a little bit on what the truth of this legislation is and we believe it’s starting to shift to our side with people saying, ‘Yeah, a 20year-old male or female busted their rear end 40 hours a week on a volleyball court or gymnasium or football field and to tell them they have no access to their name, image or likeness isn’t right.’ Look, Nike isn’t coming in and signing 450,000 college athletes but somewhere the backup quarterback at some university can go back home and pick up 100 bucks for an appearance fee at a restaurant or a car wash or whatever, that individual should have access to be able to do so and not be the only people in this country that are banned from having that access.”