Tuesday, July 2, 2019

Run [Black Athlete] Run! California Moves Forward with Bill Allowing Student Athletes to Exploit Their Own NIL; NCAA Implies Boycott

Higherlearning

In the late John Singleton's classic Movie, "Higher Learning," one of Ice Cube's finest acting performance, Cube portrays an angry black student at a predominantly white university.  Part of his anger is that he is not an athlete, he's "regular black," meaning he is treated by most people on campus as a thug, an unwanted concession to affirmative action, illegitimately occupying the space of some "deserving" white student.  When talking to one of the African American athletes, he succinctly explains the student-athlete's immunity from such daily slights  thusly:  "run ni**er run!" meaning that when his Black colleague can no longer run track or play football, or his eligibility is up, he will revert to unwanted "regular black" resulting in little if any financial benefit to the University. 

Very few athletes, and a good many non-athletes from wealthy families -- as we know from the Varsity Blues scandal -- would get into elite universities but for these tax exempt universities' desire to exploit their talents or parents' fortunes.  The NCAA's reaction thus far to the push to compensate student athletes for their participation in tax exempt amateur athletics is consistent with the hypocrisy, and inconsistent with the notion that an exempt organization is entitled to pay reasonable compensation for services as determined by reference to like services, by like organizations, under like circumstances (think NBA, NFL)."  

Recall that earlier this year, the National Collegiate Athletic Association lost yet another anti-trust case in which it sought to protect the alleged sanctity of its tax exempt "amateurism"  --  the one the court found was a complete farce, in which even most of the lowest paid D-1 paid coaches are pulling down six figures, and the highest gazillions, while the players make next to nothing.    Anyway, California is intent on taking one small step towards equity [not to mention sanity] by SB 206 which would prohibit the NCAA from enforcing rules preventing student athletes from being paid for their names, names, likeness, or images (NIL) for profit.  Seems a small thing, but the NCAA is fighting like its a National Championship game. Here is an excerpt from the bill, which most California newspapers expect will pass, followed by the NCAA's response: 

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: 

 . . .

(b) This act shall be known, and may be cited, as the Fair Pay to Play Act.

SEC. 2.

Section 67456 is added to the Education Code, to read (Section 2(a)(1)-(3) are most important):
 
 (a) 
 
(1) A postsecondary educational institution shall not uphold any rule, requirement, standard, or other limitation that prevents a student of that institution participating in intercollegiate athletics from earning compensation as a result of the use of the student’s name, image, or likeness. Earning compensation from the use of a student’s name, image, or likeness shall not affect the student’s scholarship eligibility.
 
(2) An athletic association, conference, or other group or organization with authority over intercollegiate athletics, including, but not limited to, the National Collegiate Athletic Association, shall not prevent a student of a postsecondary educational institution participating in intercollegiate athletics from earning compensation as a result of the use of the student’s name, image, or likeness.
 
(3) An athletic association, conference, or other group or organization with authority over intercollegiate athletics, including, but not limited to, the National Collegiate Athletic Association, shall not prevent a postsecondary educational institution from participating in intercollegiate athletics as a result of the compensation of a student athlete for the use of the student’s name, image, or likeness.
 
(b) A postsecondary educational institution, athletic association, conference, or other group or organization with authority over intercollegiate athletics shall not provide a prospective student athlete with compensation in relation to the athlete’s name, image, or likeness.
 
(c) 
(1) A postsecondary educational institution, athletic association, conference, or other group or organization with authority over intercollegiate athletics shall not prevent a California student participating in intercollegiate athletics from obtaining professional representation in relation to contracts or legal matters, including, but not limited to, representation provided by athlete agents or legal representation provided by attorneys.
 
(2) Professional representation obtained by student athletes shall be from persons licensed by the state. Professional representation provided by athlete agents shall be by persons licensed pursuant to Chapter 2.5 (commencing with Section 18895) of Division 8 of the Business and Professions Code. Legal representation of student athletes shall be by attorneys licensed pursuant to Article 1 (commencing with Section 6000) of Chapter 4 of Division 3 of the Business and Professions Code.
 
(3) Athlete agents representing student athletes shall comply with the federal Sports Agent Responsibility and Trust Act, established in Chapter 104 (commencing with Section 7801) of Title 15 of the United States Code, in their relationships with student athletes.
 
(d) A scholarship from the postsecondary educational institution in which a student is enrolled that provides the student with the cost of attendance at that institution is not compensation for purposes of this section, and a scholarship shall not be revoked as a result of earning compensation or obtaining legal representation pursuant to this section.
 
(e) For purposes of this section, “postsecondary educational institution” means any campus of the University of California, the California State University, or the California Community Colleges, an independent institution of higher education, as defined in Section 66010, or a private postsecondary educational institution, as defined in Section 94858.
 
(f) This section shall become operative on January 1, 2023.
 

 I understand, of course, that big boosters might use the pretext of paying for name, likeness, or image to bribe athletes to play for their favorite teams, but there a better way than allowing everybody else except the athlete to get rich from athletes' NIL.  Besides, in the competition for athletic skill, there is already a decided lack of parity.  The Univesity of Florida gets all the talent (we all know this), Bama gets absolutely none.  Ok, I jest but you get the point.  But here is how the NCAA responded in a letter from NCAA President Mark Emmert to California Legislators about to pass the Bill. "When contrasted with current NCAA rules, as drafted the bill threatens to alter materially the principles of intercollegiate athletics and create local differences that would make it impossible to host national championships.  As a result, it likely would have a negative impact on the exact student-athletes it intends to assist. "

Just what "principles" are we talking about?  Because its definitely not amateurism, capitalism, or even Hansmann's market failure!  Media reports suggests that the NCAA is impliedly threatening to pull bowls games, like the "Granddady of them all (whoooooa nellie!)" from California unless the bill is withdrawn.  The bill, according to the guardians of exempt amateurism, threatens to harm those poor athletes whose names, likenesses, and images are being used by other folks making millions of dollars.  How magnanimous of the NCAA to care so much about the student athlete! 

Darryll K. Jones 

 

 

https://lawprofessors.typepad.com/nonprofit/2019/07/california-moves-forward-with-bill-allowing-student-athletes-to-exploit-nil-ncaa-threatens-boycott.html

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Comments

I don't understand the legalities, but the egregious exploitation of student athletes of all races is despicable and should be stopped.

Posted by: Jan Masaoka | Jul 2, 2019 11:02:57 AM

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