Letter to Gavin Newsom in Reply to the NCAA: Constitutionality of California SB 206, the 'Fair Pay to Play Act'

Abstract

In a recent open letter to Governor Gavin Newsom, the National Collegiate Athletic Association alleged that pending California bill SB 206, known as the Fair Pay to Play Act, would be unconstitutional. The bill has passed both California houses and awaits the Governor's signature. This letter responds to what appears to be the NCAA legal theory, which is that state-by-state interference in college player compensation would violate the so-called commerce of the U.S. Constitution. It does not do that, I argue, notwithstanding a precedent that likely will be the NCAA's primary legal authority, a Ninth Circuit decision of 1993 called NCAA v. Miller. Unlike the statute in the Miller case, SB 206 does not directly regulate or discriminate against out-of-state commerce in any way, and so it could violate the dormant commerce clause only if it incidentally burdens interstate commerce in a way not justified by the state's legitimate interests. It does not do that, however, as evinced above all by the NCAA's own tolerance of all kinds of regulatory variation imposed by conferences and sub-national organizations. In the end, the NCAA's fear clearly is not state-by-state variation that would balkanize college sports oversight. Rather than fearing that the states will all adopt different rules, it fears that they will adopt the same one--under which players can enjoy compensation. But that then becomes a criticism of the wisdom of SB 206 as economic policy, and the Supreme Court has made very clear the that sort of criticism is irrelevant to commerce clause analysis.