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California Adopts Bill Allowing Athletes to Earn Money from Marketing Promotions or Endorsement Deals

On Monday, September 30, 2019, California Governor Gavin Newsom signed into law SB 206, the "Fair Pay to Play Act," which is a bill that could fundamentally transform collegiate athletics amateurism rules. The bill allows college athletes to earn money from the use of their name, image or likeness through sponsorships and/or endorsements, which is in direct conflict with the National Collegiate Athletic Association (the "NCAA") amateurism rules.[1] The Fair Pay to Play Act will go into effect in 2023 and will apply to all 58 California NCAA-affiliated schools.[2]

The Fair Pay to Play Act does not require colleges to pay their athletes, but rather will prohibit schools from upholding rules preventing student athletes from participating in intercollegiate athletics because the athlete is being compensated for the use of their name, image or likeness.[3] This prohibition will apply to institutions and organizations affecting California student athletes, including the athlete’s academic institution, the NCAA and collegiate athletic conferences such as the Pac-12.[4] However, colleges will be able to control the types of sponsorships or endorsements students may enter into, so that student deals will not directly conflict with preexisting school sponsorship deals.[5]

When UCLA basketball star Ed O’Bannon saw his avatar used in an NCAA-branded video game for which he received no compensation, he decided to take action, and agreed to serve as lead plaintiff in a class action challenging NCAA rules prohibiting student-athletes from receiving a share of revenues earned from use of their names, images and likenesses.  The suit alleged that the restrictions constitute an unreasonable restraint on trade in violation of antitrust laws.

On Thursday, the NCAA Board of Directors voted to allow Notre Dame and the top five conferences in Division I - Atlantic Coast, Big Ten, Big 12, Pacific-12 and Southeastern Conferences (collectively known as the “Big 5”), to create their own rules in the following 11 areas affecting student athletes (the “Autonomy Measures”):

  • Athletics Personnel;
  • Insurance and Career Transition;
  • Career Pursuits Unrelated to Athletics;
  • Recruiting Restrictions;
  • Pre-Enrollment Expenses and Support;
  • Financial Aid;
  • Awards, Benefits and Expenses;
  • Academic Support;
  • Health and Wellness;
  • Meals and Nutrition; and
  • Time Demands.

The National Labor Relations Board (“NLRB”) ruled on March 26, 2014 that Northwestern University football players who receive scholarships from the University are employees of the University and are eligible to unionize.

The NLRB cited several reasons for its decision, including that the University benefits from the players’ services through the compensation it receives for those services in the form of advertising, sponsorships, media buys, ticket sales, etc.  Additionally, it found that the University controls how and when the players perform their services and that these football players receive compensation for their services in the form of scholarships. The NLRB determined that football players receiving scholarships from the University are not “primarily students” and that their activities are rather economic ones that benefit the school.

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