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NCAA: California’s name, image and likeness legislation is ‘likely to be invalidated’

The NCAA logo at center court at the Consol Energy Center in Pittsburgh.
A court has said the legislation could be struck down as unconstitutional.
(Keith Srakocic / AP)

NCAA attorneys described California’s landmark legislation allowing athletes to profit from the use of their name, image and likeness as “unconstitutional” and “likely to be invalidated” in a brief filed earlier this week in an unrelated case.

The 9th Circuit Court of Appeals, hearing appeals from both sides in former West Virginia football player Shawne Alston’s class-action lawsuit against the NCAA and 11 major conferences over limits on athlete compensation, asked the parties if the legislation impacted the matter.

The NCAA said California’s law has no effect on the case and continued its criticism of the legislation that’s spawned similar efforts in almost 30 states.

“Further, if California does not substantially modify the law, it is likely to be invalidated on constitutional grounds, given the Court’s recognition ‘that the NCAA must have uniform enforcement procedures in order to accomplish its fundamental goals,’ ” the filing said.

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While California’s law doesn’t take effect until January 2023 — it hasn’t been challenged in court yet — the NCAA has pushed for a federal solution to the NIL issue to avoid regulations that vary from state to state.

In October, the NCAA’s Board of Governors adopted the recommendation of an internal working group studying NIL to change the organization’s bylaws in a “manner consistent with the collegiate model.” The practical impact of that isn’t clear. Member schools aren’t expected to vote on changes until January 2021.

The filing emphasized the “exploratory” stage of the process and that “the contours of any rule changes … are uncertain.”

“As an initial matter, the outcome of the working group’s efforts remains uncertain,” the filing said. “The group has not suggested any specific changes to NCAA, nor are any rule changes expected before next year. The group has simply proposed a high-level ‘regulatory framework’ to guide discussions.”

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While the three NCAA divisions have been directed to develop “specific legislative proposals,” the filing cautioned that “what those proposals will be, and what will ultimately be adopted, is thus speculative.” It noted, however, that the NCAA opposes allowing athletes “to receive NIL payments that could serve as pay-for-play.”

The long-running case involving Alston and several other former college athletes challenged NCAA limits on athlete compensation. U.S. District Judge U.S. District Judge Claudia Wilken ruled last year that the NCAA can’t “limit compensation or benefits related to education” for athletes, a blow to the organization, but well short of what the plaintiffs sought.

“If the rulemaking process has any relevance to this case, it is only to underscore the enormous complexity of the task defendants face in seeking to ensure both that NCAA rules account for recent technological and other developments,” the filing said, “and that college sports retains its amateur character.”


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