California Passes Law to Allow Student Athletes to Commercialize Their Identities
Governor Gavin Newsom signed into law SB206 which requires NCAA member universities to allow student athletes to sign endorsement deals and with agents and attorneys without losing their amateur status. Other states are following California's lead and introducing similar bills, and Congress has introduced a bill in the House along similar lines. I recently published an op-ed in the San Francisco Chronicle on the topic that sets forth some of my concerns about the impact of the law, particularly if no further actions are taken to protect student athletes. You can read it here: https://www.sfchronicle.com/opinion/openforum/article/Open-Forum-If-California-really-cares-about-14490928.php
Separate from my concerns that the student athletes may be further exploited, the law also may be challenged on a number of grounds, including the dormant Commerce Clause.
Even if enforceable, the NCAA has little to lose as the law will not cost the NCAA one dime, and will continue to allow it and the universities to control most of the uses of student athletes' identities. If we truly want to fix how the NCAA treats student athletes, legislators will have to think bigger and consider the broader context of right of publicity laws upon which they are legislating, as well as the particular problems they wish to address. The law, for example, does not guarantee a particular educational experience for athletes or help them with ongoing medical problems that outlast their college careers.
Bringing to light some of these issues is a step in the right direction, but it is not clear that promoting more commercialization (and potential exploitation) of these players is the best solution.
THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World
This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.