UB sports law expert says California bill to pay college athletes runs 'afoul' of Constitution

A bill overwhelmingly passed by the California State Senate that would allow in-state college athletes to be compensated would “fall afoul” of the U.S. Constitution, according to Helen “Nellie” Drew, director of UB’s Center for the Advancement of Sport and a national sports law expert.

“The pending California legislation that would allow NCAA athletes to be compensated would seem to fall afoul of the commerce clause,” said Drew, professor of practice in sports law who is frequently interviewed locally and nationally about sports laws and issues.

Drew said a similar issue involving state legislation regulating college athletes was addressed by the 9th U.S. Circuit Court of Appeals in NCAA v. Miller in 1993. Nevada state legislation would have required due process protections to be implemented in Nevada by NCAA institutions, but it was struck down as a violation of the commerce clause, according to Drew.

“The U.S. Constitution says states cannot make any law to impede interstate commerce. It could be argued that, by allowing student-athletes in one state to receive compensation for their services or for their likeness, name or image while student-athletes in other states could not impinges upon interstate commerce,” Drew said. “To compensate California college student-athletes would be an impediment to the NCAA’s ability to enforce its rules on national basis.”

The rationale in the NCAA v. Miller ruling was that requiring the NCAA to implement different standards across potentially 50 different state jurisdictions would interfere with interstate commerce, Drew said.

The bill asserting that athletes at California colleges and universities could earn compensation for use of their own name, images or likeness, beginning in 2023, easily passed in the California State Senate last month by a 31-4 vote. The bill now goes to the California State Assembly.

NCAA president Mark Emmert also questioned the implications of the California bill. If adopted, Emmert said in a letter sent to the chair of two California State Assembly committees, California schools could potentially be barred from competing in NCAA championships.

“As California is in the 9th Circuit,” the Miller precedent presumably would control, and the pending legislation would be declared unconstitutional if challenged in court,” Drew said.