“I’m seeking to build a coalition,” Kimpson said by phone. “I’ve received a number of calls from around the country, and we’re building strength from a legislature standpoint. There are people who are supportive.”
That is admirable and, potentially, awesome. Still, there are two problems: First, the NCAA, in its infinite wisdom, is fundamentally opposed to the idea even as it has appointed a panel to study whether it’s time to allow athletes to profit from their talents. This isn’t outright paying the players. This is giving them freedom in the marketplace to see whether their names could bring in some cash. That seems an easy solution, even as the NCAA makes it hard.
The other problem is that legal scholars aren’t certain the proposals — led by California SB 206, which could become law even if Gov. Gavin Newsom doesn’t sign it — will hold up in court.
“I think there are strong arguments on each side,” said Gabriel Feldman, the director of the sports law program at Tulane University.
Here’s an admission: When I read that the NCAA Board of Governors — which includes the organization’s president, Mark Emmert, along with 21 other leading figures from across the college sports landscape — had sent a letter to Newsom arguing that he should not sign the California bill, I was aghast at the language.
“We urge the state of California to reconsider this harmful and, we believe, unconstitutional bill,” the letter read.
Harmful? Well, to the NCAA, sure, I get it. But unconstitutional? I didn’t stay at a Holiday Inn Express last night, but how could allowing students — whether they were chemists or football players or computer programmers — to make money off their talents be unconstitutional?
Well, it could be. This takes some hand-holding by legal experts — in my case, Feldman and Brad Snyder, who teaches, among other things, constitutional and sports law at Georgetown. The reason the NCAA could write, with a straight face, that the California proposal could be “unconstitutional” has to do not with basketball games or T-shirt sales but with interstate commerce.
Such a law could be seen as giving California a trade advantage over states that didn’t empower their college athletes to make money off their names, images or likenesses. Top athletes would then be drawn to California schools, whose teams would then have an athletic advantage over, say, those in Oregon and Washington. Congress has complete power to regulate interstate commerce. Individual states do not. Sadly, intercollegiate athletics falls under interstate commerce. And the NCAA could — and probably would — annex California, prohibiting its schools from participating in national championship tournaments.
What the courts would have to consider, Feldman said, is whether the NCAA actually needs the same regulations from state to state when it comes to name, image and likeness rights. Among the central questions, he said: “How do you balance the NCAA’s interest to have uniform amateurism rules vs. the interest the state has in protecting its citizens and governing its citizens?”
Constitutional law junkies find this fascinating. But let’s get practical about it. Quick, open a browser and type “NCAA store Clemson football jerseys” into your favorite search engine. Three of the five images that popped up for me this week were orange No. 16 jerseys — replicas of the uniform worn by Tigers quarterback Trevor Lawrence.
Spend $100 on that shirt, and Lawrence will see zero of it. Could the bill Kimpson is proposing, along with Rep. Justin Bamberg, help change that?
“With respect to South Carolina, I wouldn’t be honest with you if I didn’t think this was an uphill battle,” Kimpson said.
So we have an initiative in California that has passed and certainly would be challenged in court, where the outcome isn’t clear. We have movement in South Carolina, which draws more publicity to the issue but might be a dead end. We have rumblings elsewhere. But the courts and the legislatures, that’s not where this should be solved.
“I think the ideal solution in this situation is for the NCAA to voluntarily change these rules,” Feldman said.
That’s exactly right. Feldman has even submitted a paper to the Knight Commission — first three years ago, then again this year — outlining a plan to make it happen. Let’s not make this a state-by-state legal battle. If the NCAA were to do what’s right — not legally right but morally right — it would come up with a way that it could regulate how marketable athletes — Clemson’s Lawrence, Alabama’s Tua Tagovailoa, on down the list — could profit from their own talents.
“That way, they get uniformity,” Feldman said. “Rather than have a state try to change the rules or battle this out in court — even if the NCAA is confident that they would win a lawsuit, they know it’s not a 100 percent certainty, and they risk losing control.”
Right now, the NCAA is in complete control, just as it likes to be. But the state legislatures, they’re coming. Why not get ahead of this, NCAA? A novel idea: Stay out of court, and just do the right thing.
For more by Barry Svrluga, visit washingtonpost.com/svrluga