As NCAA digs in against new law allowing college athletes to profit from their likenesses, Utah athletes, officials weigh in

(Aaron M. Sprecher | AP file photo) An athlete stands near a NCAA logo during a softball game in Beaumont, Texas, in April 2019. California will let college athletes hire agents and make money from endorsements, defying the NCAA and setting up a likely legal challenge that could reshape U.S. amateur sports.

A business school student at the University of Utah, junior Britain Covey recently pursued and was offered an internship in sales. Then the NCAA told the Utes wide receiver he couldn’t accept it.

A compliance committee for the organization that oversees collegiate athletics nationwide told Covey the position would violate its policy on athletes prospering from the commercial use of their name, image or likeness.

“I had to actually not take an internship because it was a sales internship and people [within the NCAA] wouldn’t be able to tell whether they were buying the product because I was a good salesman or because I was an athlete,” Covey said. “That was frustrating.”

The NCAA’s ban on athletes’ making money off the use of their name, likeness and image has been frustrating college student-athletes since the NCAA dubbed them as such in the 1950s to avoid workmen’s compensation claims from injured football players. Those stifling days may soon end, however, shoved toward the brink by a handful of states who have taken matters into their own hands.

California Governor Gavin Newsom started the rebellion Friday when he signed into law State Bill 206, the Fair Pay to Play Act, which would allow collegiate athletes to prosper from the use of their name, image and likeness starting in 2023. A dozen other states, ranging from Washington to Florida, are considering similar legislation. Though Utah is not yet among them, the reverberations of the showdown between the states and the NCAA are sure to be felt throughout the Beehive State.

“It absolutely jeopardizes the amateur model and the collegiate model on a lot of fronts,” Utah State Athletic Director John Hartwell said.

“We can’t bury our heads in the sand.”

(Al Hartmann | Tribune file photo) Utah State Athletic Director John Hartwell

In the locker room

It’s not just internships. Covey said he also can’t do something as simple as tweet a congratulatory message to his teenage cousin on the clothing line she developed, lest it be seen as promoting her brand. Nor can he promote brands on his Facebook page, like some of his business school classmates are paid to do.

The NCAA currently prohibits college athletes from accepting any money outside of what they get from their scholarships and part-time jobs. It argues that if athletes were allowed to accept outside money, it would blur the line between amateur and professional sports. The organization has come under fire, however, as it, universities, administrators and coaches make billions off of TV contracts, concessions, apparel sales and ticket revenues.

Meanwhile the athletes at the center of it all stand to receive, at most, the full cost of their tuition plus a cost-of-living stipend of a maximum $5,000 per year. Two exceptions include Olympic athletes, who can collect money for winning medals, and two-sport athletes, who can collect a signing bonus in one sport while remaining an amateur in another. A 2012 study found 82 percent of full-scholarship athletes who live on campus and 90 percent of those that live off campus live at or below the federal poverty level.

The Fair Pay to Play Act was created to change that for California athletes. It will allow them to participate in, and be paid for, everything from starring in commercials, to selling T-shirts with their face printed on them to running youth camps. It will also allow them to hire agents.

Utes quarterback Tyler Huntley said he’s in favor of the law.

“For sure, just ’cause we work so hard that sometimes we don’t get in return what we put in,” Huntley said. “That would be a way that we would feel like we would get rewarded a little bit for what we do.”

As a star quarterback who is ranked in the top 10 in the country at his position, Huntley would be the type of high-profile athlete who stands to benefit most from the change. One of the major questions the Fair Pay to Play Act raises, however, is what will happen in the locker room if the quarterback is enjoying endorsements while the left tackle protecting his back side or the wide receiver catching his passes is not.

(Trent Nelson | Tribune file photo) Utah Utes quarterback Tyler Huntley runs the ball as Brigham Young University hosts Utah in Provo on Aug. 29, 2019.

“It would affect the locker room, it genuinely would,” Covey said. “I don’t know if it would cause dissension between players, but it would bring a more professional feel to it, almost like the NFL.

“But the reason Tyler would be making money is because he is playing well, and that’s why I don’t think it would be a big problem in the end. You want your team to win. You want your people to play well.”

One idea that has been floated as a way to get around the locker room issue is to allow athletes who want to make money in the near-term an easier path to turning pro. That would require the NFL and NBA to follow in the footsteps of MLB, which allows athletes to be drafted straight out of high school. Most major league clubs guarantee they will pay for a player’s college education.

Jazz rookie guard Nigel Williams-Goss self-imposed such action upon himself, leaving Gonzaga before his senior year to play internationally.

“What I hope it will do for the college game and sports in general is maybe people will stay in school a little longer,” he said. “The reason I left is because I needed to start making money. Maybe a few players will stay a little longer.”

While the changes will greatly affect the individual players, the ramifications for teams and their schools as a whole might be even more significant.

(Rick Egan | Tribune file photo) University of Utah receiver Britain Covey.

A threat to the NCAA

As could be expected, the NCAA was less than thrilled about the passage of the Fair Pay to Play Act. In a response to sent to Gov. Newsom in September, the organization went as far as threatening to ban California from future playoffs.

It said the bill “would erase the critical distinction between college and professional athletics and, because it gives those schools an unfair recruiting advantage, would result in them eventually being unable to compete in NCAA competitions.”

Rod Smith, the director of the Center for Constitutional Studies at Utah Valley University, said he doubted the NCAA would follow through with its threat to ban the California schools from its playoffs. The former director of the sports law and business program at Arizona State University who served as an NCAA compliance officer in the early 2000s said the NCAA is too concerned that major California schools like USC, Cal and UCLA would join with schools from other states who approve payment for NIL and form another, competing, athletic association. That, in turn, could lead to the NCAA’s demise.

The NCAA’s concern about recruiting advantages, however, is real. If some states allow athletes to profit from their NIL and others don’t, it’s probable the schools in the states in which it is legal will attract more highly regarded players. It’s also possible that more 4- and 5-star recruits will opt to play for schools in larger markets as a way of maximizing their earning potential.

“L.A. is going to have a huge advantage for recruiting and other purposes. They already do in some respects,” Smith said. “USC, UCLA are always going to get more of the top 4- and 5-star recruits. It will exacerbate that difference between the University of Utah and schools of bigger predominance.”

That translates to a concern about the teams on the field. How will Utah schools fair against ones that allow players to profit from their NIL?

As it stands now, the home states of all but four of the 13 schools in the Mountain West Conference have proposed NIL legislation. In the Pac-12, seven schools may soon be playing by their own rules. Officials at both BYU and Utah said they are keeping an eye on the situation but believe too many hypotheticals still exist for them to even begin considering the repercussions for their programs.

The issues of potential disparity among universities has been front and center for Hartwell, though, as the Aggies football team prepared to play No. 4-ranked LSU on Saturday. LSU’s athletic revenue in 2017-18 was $145 million, or roughly four times that of USU’s.

“That’s absolutely a challenge,” Hartwell said. “Whether the difference be geographical location or the population or the media markets, all those things I think will play into it if they’re just allowed free rein.

“Also, programs that get more exposure already, or are on ESPN for all their games, will have greater opportunities to generate revenue and would create a further divide between the haves and have-nots in college athletics.”

He added that he believes the teams that already get the most media exposure, and therefore already have the advantage of reaping the most money from TV contracts, will continue to thrive, widening the gap between the haves and have-nots.

In addition, most of the money generated via college athletics comes from football and men’s basketball. So, what happens when car dealerships and restaurants start putting their dollars toward paying a school’s point guard for endorsements instead of donating those funds to the athletics program? Smith, the sports law professor, said it could result in less money for lower-profile women’s and Olympics sports.

The Pac-12 made a similar argument in its response to the passage of the Fair Pay to Play Act. California state senator Nancy Skinner, the bill’s sponsor, said she wasn’t concerned.

“The Pac-12, it’s like we’re a house of mirrors, in that they are part of the male-dominated sports industry that invests more money in the men and promotes men’s sports more,” she told the Los Angeles Times. “So how do we change that? I would love if Title IX alone changed it, but it hasn’t yet. So we have to empower women. Is SB 206 going to make it equal for women? No. But it gives women a fighting chance to promote themselves and by promoting themselves promote women’s sports overall.”

(Rich Pedroncelli | AP file photo) State Sen. Nancy Skinner, D-Berkeley, speaks on the floor of the Senate in Sacramento, Calif., on May 302, 2018. The state Assembly approved Skinner's bill to let college athletes hire agents and be paid for the use of their name, images or likeness. And it would stop the universities and the NCAA from banning athletes that took the money.

Fair play

Utah State Rep. Lowery Snow (R), a co-chair of the interim education committee, said he is not aware of anyone filing similar legislation in the state. He said, however, that he would not be surprised if someone took it up before the filing deadline in mid-January.

“One key concern is making sure the athletes are in our state schools are treated equal to other states,” he said.

Level ground will become increasingly more difficult to find as more states introduce their own versions of the Fair Pay to Play Act. Colorado, Washington, Florida, Illinois and New York have already introduced bills, while legislators have promised to bring the issue up in New Mexico, North Carolina, South Carolina, Kentucky, Minnesota, Ohio, Nevada and Pennsylvania.

With each of those bills come different riders. South Carolina’s proposed bill for example, would require all money earned by athletes to be put into a trust that would be tied to GPA and progress toward graduation, while Florida’s would allow athletes to be paid directly by companies and could go into effect as early as next year. New York’s would give athletes control of their NIL in addition to 15 percent of all ticket sales.

“Each legislative body is going to have its own twist to it,” USU’s Hartwell said. “Instead of trying to adapt to 50 pieces of legislation, I would hope that we could work in conjunction with the state and potentially the federal government to come up with a potential solution that allows us to enhance everything we can from the student-athlete experience while at the same time preserving and allowing the amateur model to continue to exist.”

To that end, the NCAA has convened a committee of conference commissioners, athletic directors, university presidents and athletes to examine the NIL issue and come up with its own proposal. The committee was created in April, shortly after Skinner introduced SB 206 to the California senate.

The NCAA’s committee is expected to announce its proposal at the end of this month.

Creating a level playing field seems to be of utmost concern to those involved on both sides of the issue. As Utah football coach Kyle Whittingham pointed out, though, that doesn’t even exist in the current model.

“I think everything is going to work out,” he said. “It’ll be a level playing field, as level as it can be. It’s not really level in general at all because some schools have millions and millions and millions and some don’t. But I don’t think it’s going to have a major impact overall.”

Smith agreed. He said he sees California’s passage of the bill as a shot over the bow, warning the NCAA it needs to take action on the issue sooner rather than later. Whatever the NCAA decides, it will change college athletics. But it won’t necessarily send it into a tailspin.

“Part of what makes this so wonderful and unique is the colleges do have a brand — people really love the University of Utah. They love their Utes. They love their Cougars,” Smith said. “Their brand is different than a professional club and they have a mission that is quite different than a professional club.

“It’s really an amazing thing that intercollegiate athletics are as popular as it is,” he added. “Clearly it doesn’t have as good of athletes as the pros, but people really like to root for their schools. I don’t think it’s going to harm their brand as much as they think it will.”