No Huddle: Pac-12 Says Others Have “More Resources And Parties Interested In Paying Student-Athletes”

    This week's No Huddle column features additional reporting on how the NCAA, Pac-12 and California schools are handling the Fair Pay to Play Act.

    In previous editions of my weekly No Huddle column, I’ve focused on North Carolina Coach Mack Brown’s decision to go for a game-winning two-point conversion against Clemson, Pitt’s remarkable ability to win huge games at a semi-frequent rate despite being a fairly middling program under Pat Narduzzi and the weirdness of college football that exists outside playoff-specific conversation.

    This space is typically used to discuss on-field action, decisions and results but I’m pivoting this week, focusing on the signing of California Senate Bill 206 – also known as the Fair Pay to Play Act, which will allow student-athletes to be compensated for their name, image and likeness – and how the NCAA, Pac-12 and California schools have responded to the legislation.

    On September 30, the Pac-12 released a 135-word statement that expressed its disappointment in the passing of California Senate Bill 206.

    But there’s obviously more to the conference’s stance and strategy than a two-paragraph response.

    Pac-12 Commissioner Larry Scott ran into California Gov. Gavin Newsom, who signed the bill, at an event in San Francisco in the first week of September and the two had a brief conversation, which led to Scott and Newsom’s Chief of Staff Ann O’Leary having a follow-up phone call on Friday, September 6 – more than three weeks before SB 206 was signed.

    In advance of the call, Pac-12 officials coordinated with the government affairs teams from Cal, Stanford, UCLA and USC to receive input on the conference’s messaging and approach regarding the bill.

    The Pac-12 came away with four key messages, which Scott relayed to O’Leary, and sent in an email to USC President Carol Folt, UCLA Chancellor Gene Block, Cal Chancellor Carol Christ and Stanford President Marc Tessier-Lavigne, and later forwarded to the then-current athletic directors of the Pac-12’s California schools – Jim Knowlton (Cal), Dan Guerrero (UCLA), Bernard Muir (Stanford) and Lynn Swann (USC).

    Stadium obtained the Pac-12’s four key messages via public records request and they were transcribed word-for-word below. The first and fourth messages are predictable from a conference perspective and they were the foundation of the Pac-12’s public statement.

    The second and third messages, however, are much more enlightening.

    The Bill Would Abandon Amateurism and What is Right About College Athletics

    • Signing SB 206 will change the entire amateur nature of college athletics and likely result in courts concluding our student-athletes are professionals.
    • The controlling court decision in California (O’Bannon) held that even small ($5000) NIL payments to student-athletes violated amateurism and made them “poorly-paid professionals.” The Court said, “Once that line is crossed, we see no basis for returning to a rule of amateurism and no defined stopping point….”
    • Once allowed, there may be no way to adequately regulate NIL consistent with antitrust law.
    • Abandoning amateurism would be contrary to our universities’ charters and missions and have major unintended consequences on our athletic programs and broader operations.

     

    California Universities Won’t Be Able To Compete

    • Enacting SB 206 would further disadvantage California universities from a competitive and recruiting standpoint.
    • Other parts of the country have more resources and parties interested in paying student-athletes, and we would be severely disadvantaged in an open market for student-athletes.
    • Whether or not the NCAA liberalizes the rules, California loses.
      • If NCAA maintains its current rules and the California law places our universities in violation of those rules, no student-athlete would want to come to our universities.
      • If NCAA liberalizes the rules, other regions with more interest and resources will beat our universities out for the best student-athletes.

     

    Strong Concern for Women’s Sports Under NIL Model

    • There is a current fallacy about the benefits of an NIL world to female student-athletes.
    • Our experience, and recent disputes in USA Soccer, USA Hockey, and other sports indicate that once we move to a professional model, women’s sports will suffer.
      • NIL, donations and university resources will increasingly go to football and men’s basketball, threatening the existence an support of Olympic sports generally, including women’s sports.
    • We believe more women student-athletes will be hurt by this bill than helped, which is very concerning for our universities who have been the biggest and best supporters of women’s athletics.

     

    Better for California to Work with Pac-12 and Our Universities on Reform

    • We understand the Governor is disappointed in the pace of reforms by NCAA.
    • The Pac-12 and our universities have been the most progressive in pushing real reform for student-athletes in the NCAA, and is prepared to work with the Governor on developing additional reforms together.
    • This bill is not the answer, but we have a track record at advocating for and passing national legislations through the NCAA Autonomy Process on behalf of SAs.

     

    Publicly, the Pac-12’s initial statement addressed the “professionalism of college sports” and “a state law that conflicts with national rules,” as well as perhaps unproven speculation about how the legislation will “likely reduce resources and opportunities for student-athletes in Olympic sports and have a negative disparate impact on student-athletes.”

    But there’s even more to be gleaned from the Pac-12’s internal messaging about how the conference believes the passing of the bill would affect recruiting, and therefore staying competitive nationally.

    Behind the scenes, the Pac-12 is either being intentionally disingenuous about its conference’s geofinancial footprint and/or it’s admitting that the fan bases of its member schools frankly don’t care as much about college athletics as other fan bases nationally.

    Both options are fascinating.

    Let’s start with the line from Scott’s memo to California athletic directors that “Other parts of the country have more resources and parties interested in paying student-athletes, and we would be severely disadvantaged in an open market for student-athletes.”

    The argument jumped out to me, considering a 24/7 Wall Street report in April that stated California has a $2.6 trillion economy, which the report said is “larger than all but half a dozen countries worldwide.”

    There’s not necessarily a direct correlation between a state’s GDP and the amount of funding third-party corporations or individuals are hypothetically willing to pay student-athletes for endorsement deals involving their name, image and likeness, but claiming that states in the Pac-12 footprint have fewer resources feels misguided, if not factually inaccurate, specifically in regards to California.

    Remember, the Fair Pay to Play Act passed in California will allow for third-party payments to student-athletes for their name, image and likeness. The funding wouldn’t come from schools, so this isn’t an issue of the Pac-12 Network being less of a money-maker than the Big Ten Network or SEC Network.

    Now let’s tackle the phrasing that “If NCAA liberalizes the rules, other regions with more interest and resources will beat our universities out for the best student-athletes.” That’s potentially quite a private admission by the Pac-12, which faces an obvious disadvantage nationally by operating on Pacific Time.

    There are issues of measuring “interest”; sure, you can try to use TV ratings, ticket sales or the size of alumni bases, but do we know for sure that the fan or commercial interest across Pac-12 sports is significantly less than, say, the ACC or Big 12?

    I’d like to see what data the Pac-12 used to quantify interest.

    And even if that is true, does that mean a world where student-athletes can receive compensation for their name, image and likeness will be less conducive to Pac-12 schools landing top recruits?

    Because take one look at the 2019 football recruiting class rankings and you’ll notice that the Pac-12 does get some of the best student-athletes and it does get beat out by schools in other regions of the country.

    Both can be true, and student-athletes getting paid for their name, image and likeness wouldn’t necessarily change either of those dynamics. The Pac-12’s belief that its universities will lose out on the best student-athletes isn’t necessarily true, or at the very least, the alleged recruiting disparity may not be any worse than it is now.

    With things being “equal” now, the Pac-12 isn’t getting the level of elite talent that the top schools in the SEC, Big 12 or Big Ten land annually.

    Oregon enrolled the highest-ranked recruiting class in the Pac-12 this fall, checking in at No. 7 nationally, behind Alabama, Georgia, Texas, Texas A&M, LSU and Oklahoma.

    Washington landed at No. 15, USC at No. 20 and Stanford at No. 21.

    Those rankings can also be used, anecdotally, to dismiss another Pac-12 claim that “If NCAA maintains its current rules and the California law places our universities in violation of those rules, no student-athlete would want to come to our universities.”

    Even if the Pac-12 has just two College Football Playoff appearances, its top programs are still attracting quality student-athletes. The ability to earn money shouldn’t dissuade future recruits.

    The Fair Pay to Play Act won’t take affect until January 1, 2023 so the NCAA literally has years to figure out adjust to Senate Bill 206, and any similar state-specific legislation, so it feels extremely unlikely the NCAA is going to cast off major institutions like USC, UCLA and Stanford.

    That’ll be settled in the courts or in boardrooms before the law takes effect.

    You’re telling me that a sales pitch to a 17-year-old kid that he or she can live in California, attend one of the best schools in country (Stanford is ranked the No. 6 university in the country for 2020 by U.S. News & World Report, UCLA was ranked the No. 1 public school and Cal was No. 2), play for a program that already attracts some top recruits and have the opportunity to get paid for your status as a student-athlete would fall upon deaf ears, even if the future state law is currently in violation of NCAA rules?

    I don’t buy it.

     

    Here’s what we learned from other public records requests

    Here are a few other interesting findings from my public records requests into how California schools have responded to the passing of California Senate Bill 206.

    1. UC Berkeley School of Law Dean and Professor of Law Erwin Chemerinsky wrote an opinion column for the Sacramento Bee that was published September 6 and titled “Colleges make lots of money off of sports. Why can’t student athletes do the same?

    The column closes with the following paragraph, “As I have read about the debate in SB 206, I am baffled by the argument against allowing college athletes to be compensated for the use of their name or likeness. It is a basic issue of civil rights. College athletes should have the same right to benefit from endorsements and sponsorships as all others in society.”

    The column was flagged by someone in Cal’s athletic department a week after it was published and Cal A.D. Jim Knowlton responded to the internal email, asking “Did he talk to anyone from athletics before he wrote this?”

    In his opinion column, Chemerinsky argued, “This is not just about elite male athletes in football and basketball. Female athletes, in particular, have a great deal to gain from SB 206 because they have far fewer opportunities to play professional sports than male athletes. For many female athletes, college may be the only real time to achieve compensation from their talent. Moreover, if female athletes could market themselves, as they could under SB 206, it likely would raise the profile of women’s sports in general and provide even more opportunities for female athletes.”

    Chemerinsky’s points about female student-athletes make a lot of sense. If their earning-potential window as an athlete is inherently much smaller than their male counterparts due to fewer opportunities in professional sports, California Senate Bill 206 should be a positive for them as it would allow them to maximize their potential income in the years in which they’re actively competing.

    Plus, since female student-athletes could receive compensation for their name, image and likeness, that could lead to more and better marketing for the sports they play and the teams they’re a part of, leading to more exposure and publicity for women’s sports.

    This is in direct contrast with the Pac-12’s external and internal statements.

    Remember, the Pac-12’s statement in response to SB 206’s passing included the explanation that SB 206 will “have a negative disparate impact on female student-athletes” and one of the Pac-12 four main messages that were included in Larry Scott’s email to Pac-12 CEOs was titled “Strong Concern for Women’s Sports Under NIL Model.”

    Well, Chemerinsky, a dean at one of the Pac-12’s member institutions that’s located in the same state that will be impacted by SB 206, penned a sensible argument for how the Fair Pay to Play Act will help female student-athletes, and he did so more than three weeks before the Pac-12 publicly proclaimed the opposite.

    The same day Chemerinsky’s opinion column was published, Cal AD Jim Knowlton responded to Pac-12 Commissioner Larry Scott’s email update on SB 206 with “Larry, Well done – thank you for sharing!” so it’s not hard to figure out which side Knowlton is on, and it makes you wonder what the conversation would have been like if Chemerinsky had talked to an athletics administrator before he expressed his opinion on the name, image and likeness issue in the Sacramento Bee.

    2. Pac-12 Commissioner Larry Scott sent a letter to Kansen Chu of the California State Assembly on June 14 and requested that the Arts, Entertainment, Sports, Tourism and Internet Media Committee hold SB 206 pending the outcome of the NCAA’s working group’s study of modifications to the current rules, policies and practices related to the issue of student-athletes’ name, image and likenesses.

    The working group includes Colorado AD Rick George and it plans to present a final report to the NCAA Board of Governors in October, according to Scott’s letter. The letter included the following paragraph:

    “As a conference, our mission and core values are very much aligned with the author’s interest in protecting and supporting the welfare of student-athletes. In fact over the last several years, our Pac-12 universities have played a leadership role in developing and passing (along with their peer universities around the country) significant national reforms to help student-athletes. These reforms have included legislation mandating enhanced medical and mental health coverage, protecting athletic scholarships from being canceled due to athletic performance, providing full cost-of-attendance scholarships, changes to students’ schedules allowing them to have more free-time away from mandatory sports requirements, and a new structure that allows students to vote on legislative matters. These reforms have made a meaningful impact on the lives of our 7,000 student-athletes and their tens of thousands of peers across the country.”

    It’s probably fair to question how much the Pac-12’s mission and core values are truly aligned with “protecting and supporting the welfare of student-athletes” when the conference appears to be placing its collective financial interests over name, image and likeness payments that would likely be pennies on the dollar compared to the millions that Pac-12 schools receive annually from ticket sales, contributions, media rights and sponsorships.

    3. On Wednesday, September 4, California Gov. Gavin Newsom announced the signing of seven bills, including AB 1518, which was sponsored by Assemblymaker Kansen Chu and allows student-athletes to enter into a contract with an agent and not lose their eligibility if the contract complies with the student-athlete’s school, NCAA bylaws and includes a provision that the contract terminates if the student-athlete elects to return to school rather than seek employment with a professional sports team.

    The bill was proposed by UCLA athletics and UCLA Sr. Associate Athletic Director of Internal Operations Matt Elliott alerted UCLA AD Dan Guerrero of the bill’s signing.

    “Good stuff,” Guerrero wrote in an email response. “Little victories!”

    It provides an unrelated but interesting layer to the signing of SB 206, seeing that AB 1518 also relates to student-athletes’ rights and UCLA’s athletic department celebrated Gov. Newsom signing the bill.

    Sure, AB 1518 was signed to match NCAA bylaws while SB 206 is in direct conflict with them, but that doesn’t mean that the latter can’t be supported by people in positions of power at universities.

    4. The NCAA held a conference call on Monday, September 9 that included NCAA President Mark Emmert and representatives from various California member institutions to discuss SB 206. “This measure, if adopted, will harm student-athletes in California,” Emmert wrote in part of a follow-up email to the group.

    5. You could make the case that one of the biggest current student-athlete rights advocates, or at least the one with the largest platform, is someone who never participated in college athletics, LeBron James.

    James’ public support of SB 206 on Twitter warranted an email from UC Davis Director of State Government Relations Adrian Lopez to Athletic Director Kevin Blue, Associate Chancellor and Chief of Staff Karl Engelbach and Interim Lead and Director of Community Relations and Local Government Relations Mabel Salon.

    “Lebron (sic) chiming in on this has swayed things a bit now in the author’s favor…,” Lopez wrote.

    That’s the influence James wields with his 43.7 million Twitter followers.

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