Where the Law is Headed

In September 2019, California Governor Gavin Newsom signed Senate Bill 206 into law. The Fair Pay to Play Act “permits college student athletes to benefit financially (for example, from endorsement deals) for their names, images, and likenesses while still in school,” ( Senate Bill (SB) 206).

Senators in other states are working to pass similar legislation that would allow college student-athletes to make a profit while they are enrolled. 

Darren Heitner, founder and attorney at Heitner Legal, is working in Florida on legislation that will allow student athletes to profit off their name, image and likeness. Heitner recently participated in a Sports Law Roundtable at Hofstra University, presented by the Hofstra Law’s Sports and Entertainment Law Society (SELS). Heitner draws several distinctions between Florida’s bill and the California bill that has already been signed. 

“One big distinction between our bill and that of the state of California is that we’re only talking about college athletes who are enrolled in institutions,” Heitner said. “We’re not saying that individuals who are not yet enrolled will be given this right of publicity to exploit commercially the use of their name, image and likeness.”

Heitner went on to explain the importance of this distinction, which is that boosters and schools will not be able to entice a prospective student with concrete information about future compensation. It is only when a student-athlete is enrolled in school that they will be able to benefit from their right of publicity.

The Florida bill also does not distinguish between junior colleges and 4-year colleges. In addition, Heitner says the bill will allow for any college athlete in the state of Florida to be represented either by a licensed Florida attorney or a licensed athlete-agent.

Also in attendance at the Hofstra SELS roundtable discussion was New York State Senator Kevin S. Parker. Parker represents the 21st district of New York which includes Flatbush, East Flatbush, Midwood, Ditmas Park, Kensington, Windsor Terrace, and Park Slope. Parker has proposed an equal pay bill for every student-athlete at senior colleges and universities across New York. If signed into law, this legislation would require 15% of a school’s total revenue be divided among every student-athlete at that school. 

“If you’re the starting quarterback or a reserve player on the women’s field hockey team, you get the exact same cut,” Senator Parker said.

To rationalize this equal pay proposal, Senator Parker’s bill also allows college athletes to profit off their name, image, and likeness through endorsement deals separate from university compensation. 

Legal/Ethical Implications of the Changing Laws 

If Florida, New York, and more states throughout the country pass legislation similar to that of California, various ethical and legal implications can result. Furthermore, while the proposed legislation in Florida and New York covers the same issue, the various distinctions between the bills can also raise the ethical issue of unequal compensation for the same “job” across state lines.

As for legal issues, one would be the status of college athletes in a court of law. 

If considered a public figure, a college athlete has a larger burden of proof when bringing a defamation or invasion of privacy lawsuit. The benefit to being a private citizen can be seen in a court of law, where it becomes easier to win a defamation case as private citizens do not have to prove “actual malice” on the part of the defendant. 

As more laws might be passed to allow college athletes to be paid across the country, it would arguably be beneficial for a new precedent to be set for potential defamation and invasion of privacy proceedings that will be brought by these athletes.