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Kentucky Wildcats Morning Quickies: NCAA Versus California Edition

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The new California law allowing amateur athletes to sell commercial use of their identities to third parties is the hot topic in sports today. It has far-reaching implications for college sports, but will have to survive court challenges first.

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Good morning, ladies and gentlemen of the Big Blue Nation, and welcome to the Tuesday Morning Quickies.

There is a lot of sturm und drang over the recently-signed legislation in California providing that student athletes have the right to negotiate with third parties for compensation for the commercial use of their identities. That is as it should be, because the law potentially could effectively force the NCAA to disqualify member schools from California as NCAA members. Alternatively, it could force the NCAA to revise their amateurism rules to comport with California law.

Michael McCann of Sports Illustrated does, as usual, an outstanding job of examining the issues raised by this new law, which does not go into effect, by the way, until January 1 of 2023. That provides 39 months of time for the states and NCAA to litigate this in the courts. That seems likely, but is not a foregone conclusion, because the NCAA may just see the handwriting on the wall in the form of other states considering similar legislation and cave in. But I wouldn’t count on it.

In the first place, despite the fact that several states will be considering similar legislation, most states probably won’t. That means that by the time 2023 gets here, assuming the NCAA and the other states with such laws are still at loggerheads, there will be a reckoning of some kind — either the NCAA will be significantly smaller, or it will have to change its rules. The consequences to TV and other commercial contracts will be far-reaching and profound.

To me and at a layman’s first blush, it looks like the NCAA has a very good chance of prevailing in the courts on Commerce Clause grounds. Consider, from McCann’s piece above:

The NCAA is very familiar with Commerce Clause challenges. It likely feels optimistic that one would work against the Act. In 1993, the NCAA secured a legal victory against a state statute on Commerce Clause grounds. In NCAA v. Miller, the U.S. Court of Appeals for the Ninth Circuit held that the Commerce Clause barred the State of Nevada from requiring the NCAA to provide “a Nevada institution, employee, student-athlete, or booster who is accused of a rules infraction with certain procedural due process protections during an enforcement proceeding in which sanctions may be imposed.” The statute was passed in the wake of the UNLV men’s basketball recruiting controversy.

This is by no means identical to the instant controversy, as it was a mandate by the state on an interstate organization, the NCAA, who had membership in Nevada. California’s law is not directed at the NCAA directly, but at third-parties within the state of California. That difference may be enough.

Still, it is inarguable that this law “affects interstate commerce” in the understanding of previous court decisions. Whether other factors render this permissible where previous similar laws have failed is beyond the scope of my expertise.

My own preferences would favor the NCAA in this one. I prefer the NCAA gradually change over time to a forced change by one state trying to make policy for the entire country. To be fair, sometimes the only way to force change is through lawsuits like O’Bannon et. al., but I prefer state legislatures don’t involve themselves in this process.

What I can say is that there will be lawsuits, and that I’ll be buying some popcorn for this one.

I’ll add a final thought experiment for debate, although it’s heresy: Perhaps it’s time for commercial college sports to end, and universities to return to an educational-only mission and intramural-only athletics. Note that I am not advocating this — perish the thought — but there may come a time when college sports are indistinguishable from professional sports, and to me, that’s when they lose a substantial amount of entertainment value.

Related: SI’s Michael Rosenberg on the unintended consequences of the NCAA adopting the California law.

Related: SB Nation on the California law

Related: SEC’s Greg Sankey issues a statement on the new California law.

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