What constituted an “existential threat” to college sports in September, now apparently represents the National College Athletic Association (“NCAA”)’s path forward.
After weeks of pressure to formulate a response to California’s Fair Pay to Play Act, the NCAA announced Tuesday they would begin developing policies that would permit student athletes to profit from their name, image, and likeness, something current NCAA policy bans. The exact contours of this policy shift remain unclear – one can certainly bet on a parade of bureaucracy, committees, and tepid recommendations – but the NCAA clearly saw the writing on the wall in the wake of California’s legislation.
Despite the near universal agreement amongst pro-student athlete compensation advocates, there seems to be little agreement on how to appropriately frame either the problem or the path forward in the wake of California’s legislation. The majority of the bills’ supporters celebrate the law as rectifying economic inequalities between the universities, coaches, and administrators profiting off of sports and the student athletes themselves who are barred from compensation beyond their scholarships. By contrast, many commentators have situated student athletes’ compensation within a broader racial justice framework that seeks relief beyond economic equity for the highest revenue producing sports and players.
As the NCAA charts its path forward, it’s critical that policymakers, activists, and the public seek strategies that highlight the necessity of racial justice and civil rights for student athletes in recognition of the highly racialized nature of NCAA exploitation. While the economic reality of student athletes is stark, trying to address only the economic nature of the exploitation without supporting a broader set student athletes’ civil rights will generate solutions that only address part of the NCAA’s oppressive system.
Such an approach contrasts sharply with the dominant free-market view commonly espoused when criticizing the NCAA. Under this system, student athletes are victims of what amounts to anti-trust violations whereby the NCAA prevents student athletes from compensation from schools in terms of salary and prohibits students signing contracts with third-parties to profit from their athletic labor. The NCAA thereby monopolizes the market for college athletics and retains all the profits for universities and administrators. The solution to exploitative constraints on the market is to empower student athletes with the economic freedom to negotiate and profit from their labor. A rights-oriented view, by contrast, seeks to bring the “same strengths to this problem that were brought to bear in attacking and breaking down all forms of racial segregation.” Ultimately, by assessing student athlete compensation as a racial justice and civil rights issue, rather than simply as an economic issue, advocates have both more factual and legal ammunition with which to attack the structure of the NCAA.
Factually, focusing on the economic inequality between schools and athletes only tells part of the story. Yes, schools benefit disproportionately from athletes’ labor. The billion-dollar TV deals and million-dollar coaching contracts make the NCAA’s calls for amateurism absurd. But missing from this gaping inequity is a recognition that financial compensation is only part of the solution. First, the economic inequalities of college sports are highly racialized. At the top, the NCAA is run by white men. In 2007-2008, 92.5% of university presidents at Football Bowl Subdivision institutions and nearly 90% of coaches across men’s Division I teams were European American (white). In contrast, the student athletes in the highest revenue producing sports, football and basketball, are disproportionately black. This system, in which white administrators punish predominantly black athletes who accept compensation for their labor, has “an unmistakable whiff of the plantation.”
Underlying the sheer disparities in who controls the profits of sports is the highly racialized nature of student life for black student athletes. Black student athletes frequently report feeling targeted on campus as “mere interlopers” only at school for their athletic ability, which results in athletes not taking advantage of educational opportunities and reporting significant mental health difficulties adjusting to life on campus. Institutions endorse this “interloper” status by creating racist academic programs for athletes, manipulating graduation rates, and forcing athletes to treat sports as a full-time job. In short, academic life for black athletes requires enduring significant racial stigma, while universities frequently fail to deliver on the “student” aspect of student athletes.
The racialized nature of the above treatment underscores the short-comings of the free-market view. Any compensation provided to student athletes, especially those that require the prominence required for an endorsement deal, will have only a limited impact on their daily lives. The lifetime consequences of lower graduation rates and an inadequate educational experience are significant in ways the compensation plans being discussed cannot overcome. Black student athletes report feeling dismissed by classmates and professors, which undermines the types of professional connections that can support an athlete after school. Moreover, while the free-market view seeks greater bargaining freedom, a rights-based approach centered on racial justice recognizes the connection between inequities in public education and black athletes’ experience on college campuses. Some advocates have pushed schools to provide greater educational resources to the communities from which they recruit black athletes, greater mental health resources on campus, or decreasing course load requirements but increasing access to educational support. A rights-based approach, then, goes beyond compensation to provide student athletes with a robust and meaningful student life.
Beyond academic reforms, a civil rights framework lends insight into how advocates can navigate the host of legal challenges that will inevitably emerge as the NCAA’s current compensation system falters. First, and most prominently, as the NCAA’s claim that student athletes are students, not employees continues to lose support, a rights-based approach’s familiarity with Title VII can help ensure equality in the distribution of any compensation program’s benefits. Moreover, while the Supreme Court held the NCAA was not a “state actor” for purposes of constitutional rights enforcement, some legal scholarship has pushed for viewing certain NCAA policies and actions as “state action” for purposes of constitutional enforcement. Given the public’s current skepticism towards the NCAA system, revisiting the state action doctrine, then, could be a powerful tool for advocates. A ruling declaring the NCAA’s treatment of student athletes as “state action” would secure athletes with the full panoply of constitutional protections. Fighting for greater constitutional protections complement efforts to unionize and assert other economic-centered rights, but it’s a strategy that requires seeing justice for student athletes as something bigger than just an economic issue.
Second, the rights-oriented framework ties the influence of prominent student athletes to broader social justice struggles. For example, advocates have begun calling for black student athletes to abandon the NCAA model altogether and attend Historically Black Colleges and Universities (HBCUs). Additionally, black student athletes have a long history in using the prominence of sports to challenge objectionable cultural and university issues. In a recent example, the University of Missouri football team threatened to boycott an upcoming game unless the university acceded to student organizers’ demand that the university president step down due to “gross negligence” in handling racial justice issues on campus. Asserting power in similar circumstances requires both a constitutional defense of student athletes’ free speech rights and appreciating the historical connection between the civil rights movement, campus protests, and college sports.
California’s Fair Pay to Play Act is an exemplar of where the intervention of a civil rights framework is most critical. While the Act grants athletes the ability to sign endorsement deals, the Act does not provide any institutional support for athletes navigating the market. Indeed, a large part of the reason the bill retains such significant support is because it doesn’t alter the prohibition on universities paying athletes directly. The bill’s appeal is strongly grounded in the free market principles preferred by the NCAA and other opponents of student athlete compensation.
The bill isn’t ambitious enough in other ways either. It leaves the power imbalance between universities and student athletes in place. It leaves it to the student athletes themselves to ensure bargain for themselves and asks nothing of the universities. Student athletes who are prominent enough to have endorsement deals have leverage with which to advocate for their interests against universities, but the student athletes without such prominence who still experience racial stigma and lackluster educational programs do not. Moreover, the bill does not challenge speech restrictions on athletes, support race-conscious economic or academic initiatives, or provide a solution to the myriad of labor law problems that will emerge as the amateurism myth of the NCAA begins to erode.
To be clear, the solution is not to prohibit student athletes from signing endorsements. The bill gets that point right. Instead, the task is to adopt a strategy and viewpoint that enables the next legislative effort to go further. We should fight for solutions that try to alter the power imbalance perpetuating that system.
The NCAA model of amateurism is certainly an economic injustice, but it is also a systematic racial injustice. And without recognizing the later, solutions targeting the former will continue to come up short.
