On Feb. 10, S-971, the "New Jersey Fair Play Act," which allows collegiate student-athletes to earn compensation for use of their name, image, or likeness, passed the Senate by a vote of 21 to 11, i.e. a bare majority of the full Senate. This split was not purely partisan, and four Democrats and four Republicans each voted against the majority of their party.

California recently passed a similar bill (Cal. Educ. Code §67,456), directly challenging the regulations of the NCAA that forbid students from receiving compensation for their athletic efforts beyond their school-awarded scholarships. More than half the states are considering joining suit.

We agree with the main purpose of the bill, and we view with skepticism the patronizing contention that adult student-athletes must be shielded from the corrupting influence of money earned from their own efforts. Some critics claim that such regulations are really an attempt to ensure that such lucrative sponsorship profits go exclusively to the schools and athletic conferences rather than the student-athletes themselves. At any rate, whatever the intent, the current regimen has created the structural opportunity for exploitation that is inherent when an athlete whose very efforts generate resources is forbidden from bargaining to enjoy a share of those resources.

Somewhat belatedly, the NCAA has proclaimed itself as the source of the solution and not the problem. It claims that it is working on rules to be published in April that would allow, at least to some extent, athletes to benefit from their own name and likeness, but in the meantime it has hastened to Washington and asked Congress to intervene and establish a uniform federal rule against unrestrained college athlete endorsements. Media reports indicate that the federal legislators believe the ball is in the NCAA's court to suggest workable uniform rules first.

We agree that a uniform rule is preferable to a state law patchwork, but are reluctant to encourage Congress to unilaterally remove the incentive that these state laws are providing for the NCAA and other arms of the college athletics establishment to come to the table on this matter.

There is one aspect of the New Jersey bill, however, that is inconsistent with the overall message that student-athletes should not be infantilized. Although generally patterned after the California law, the New Jersey version additionally provides that, notwithstanding the new rights bestowed under the act, a student-athlete at a New Jersey four-year college or university "shall be prohibited from earning compensation as a result of the use of the student's name, image, or likeness in connection with … adult entertainment products and services; alcohol products; casinos and gambling, including sports betting, the lottery, and betting in connection with video games, on-line games, and mobile devices; tobacco and electronic smoking products and devices; pharmaceuticals; a controlled dangerous substance; and weapons, including firearms and ammunition."

All these industries are legal (or in one case will become legal if the cannabis constitutional amendment passes), although their reputation is perhaps inconsistent with prim notions of respectability in certain social quarters. But does protecting against the cognitive dissonance of young (but adult) college athletes who epitomize a healthy lifestyle endorsing their favorite beer rise to the level of a substantial interest that justifies the state enacting an outright ban on such endorsement agreements?

We think this is not just a political issue, but a legal one as well. Since endorsement through use of one's name or likeness is a form of expression and association, there is a respectable challenge under both the First Amendment and Article I, ¶6 of the New Jersey Constitution against a state prohibition on college athletes endorsing industries that have made someone's list of disfavored or at least politically controversial undertakings. Even under the somewhat more flexible standards afforded government regulation of commercial speech, such content-based discrimination is presumptively unconstitutional absent some significant state interest that goes beyond validating old-fashioned notions of social propriety. While we agree that a convincing case can be made that there is a compelling interest in preventing a student-athlete from endorsing a sports betting enterprise that depends upon his own athletic activities, we do not see such a nexus in any of the other proscribed subjects.

The bill now goes to the Assembly Higher Education Committee, which had passed a previous version of this bill in the 218th Legislature. We urge the committee to reexamine the prohibition on endorsement contracts with enterprises associated with a more bohemian lifestyle, but otherwise urge favorable consideration of the act. If the NCAA is able to suggest a viable alternative in April, then it will be because of the pressure imposed by this and similar legislation.