Guest Post by Derek Helling

As current and former athletes at NCAA-member institutions increasingly look toward the courts for relief from NCAA bylaws they deem unfair, a new ally has emerged in their endeavors to gain ground in this facet of the ongoing war between capital and labor. That new ally is state legislatures.

The mounting number of state legislatures who are considering drafting legislation aimed to give athletes at NCAA-member institutions more and new rights which aren’t currently afforded them under NCAA bylaws began in Washington state earlier this year.

West Coast Representing

Rep. Drew Stokesbary (R-31) introduced HB1084, which is currently in the College and Workforce Development Committee in the Washington House. In its current version it would make the NCAA punishing any party who compensates athletes at the state’s schools illegal. It would also make the NCAA sanctioning athletes who hire agents against the law as well.

Stokesbary isn’t optimistic about the bill’s passage, at least in its current version. Washington is far from the only state where such measures are being considered. The next is just a tad south on the map.

Earlier this month California Senator Nancy Skinner (D-9) introduced SB206. As opposed to a broader inclusion that would allow schools to compensate their athletes directly, Skinner’s bill is focused on athletes’ image, likeness and name rights. Current NCAA bylaws prevent athletes from receiving compensation for the usage of them. If enacted, this legislation would enable athletes to sign endorsement and sponsorship contracts in exchange for payment.

While that would be a significant change of the status quo for athletes in California, a bill on the other side of the country might be even more of a game-changer.

Jordan McNair’s Tragedy May Become His Legacy

Months after the death of University of Maryland American football player Jordan McNair, a member of the state’s House of Delegates has proposed legislation that could result in the most-sweeping changes of all the bills introduced thus far.

Earlier this month Del. Brooke Lierman (D-46) introduced HB0548, which is scheduled for a hearing on Feb. 19. The legislation would give athletes at the state’s colleges/universities the right to unionize and collectively bargain with the schools’ athletic departments on issues like health and safety protocols plus compensation.

Lierman spoke about her experience with college athletics and vision for HB0548:

“The balance of power between student athletes and universities is out of whack,” Liernan said. “Student athletes often face enormous pressure to perform - and put in the blood, sweat and tears necessary to win championships, yet they often are left entirely out of the reimbursement discussion - universities and the NCAA profit off of their success, and football and basketball coaches are some of the most highly-paid state employees in Maryland. Our student athletes deserve protection to ensure that their health and safety, education, and their future aspirations are not jeopardized by the big business of college sports.

“Right now, we are asking young people who are coming right out of high school - and who often are totally dependent on scholarship or financial aid dollars being offered to them by college recruiters - to sign contracts that give away their rights and don’t always provide adequate protections,” Liernan continued. “That’s wrong. This bill will allow for student athletes - should they choose to do so - to work with a union or advocate to help them establish protections on scholarship terms, health benefits, the use of their likeness for marketing, and to have an independent advocate.”

Also on the east coast, a committee has been formed in the North Carolina legislature to evaluate the state of college athletics and make recommendations to the full body as to how it could improve the current situation for athletes.

These three bills and anything that comes out of the N.C. legislative committee have a long ways to go before becoming law. It’s possible that even if enacted, they could be heavily amended before being included in their individual states’ codes. Passage may be just the beginning of the battle on these pieces of legislation.

Possible Court Challenges to Legislative Action

These bills, or similar ones, being enacted by state legislatures would undoubtedly prompt immediate challenges to their legitimacy in the respective states’ court systems. Whether the suits would be filed by the schools, their athletic departments or groups of citizens, arguments could be made that the state legislatures overstepped their authority to regulate commerce or that the regulations put the athletic departments at a competitive disadvantage in comparison to other similar institutions in states without the regulations.

There is precedent for businesses challenging the state’s authority to regulate them. One such example is a group of Texas businesses who successfully challenged a state law denying them the ability to pass credit card processing charges onto customers last year. There is an element that could complicate such challenges for many of the institutions, however.

Many of the affected schools are not only funded by but also administered by their respective states. The legitimacy of state legislatures to regulate state schools could be very difficult to challenge. Private schools may have more success in such litigation.

The lobbying interests of the athletic departments in these states may be powerful enough to prevent these bills from becoming law, but they are still a sign that public opinion is shifting to view the NCAA’s current model of amateurism and economics in a less favorable light. The pertinent question now becomes whether the NCAA will react to this on its own or if legislatures will force changes upon it, one state at a time. As Lierman aptly stated:

“Over the past decade, it has become more clear every year that universities are not doing an adequate job prioritizing the well-being of their athletes, or their future interests. From Michigan State gymnasts facing years of abuse to the deaths of college athletes here in Maryland, it is clear that we can prevent these issues and should be doing more for our athletes. There is no one at the university level who is uniquely tasked with being a voice and advocate for our student athletes and the unique situation they face - we need to create a more fair balance of power, and this bill is one method of doing that. I believe we have reached a tipping point in college athletics where we will no longer accept harm to student athletes as part of the cost of doing business.”