{"id":11951,"date":"2019-11-01T13:24:45","date_gmt":"2019-11-01T17:24:45","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/crcl\/?p=11951"},"modified":"2019-11-01T13:24:45","modified_gmt":"2019-11-01T17:24:45","slug":"student-athlete-compensation-is-a-civil-rights-and-racial-justice-issue","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/student-athlete-compensation-is-a-civil-rights-and-racial-justice-issue\/","title":{"rendered":"Student Athlete Compensation is a Civil Rights and Racial Justice Issue"},"content":{"rendered":"

What constituted an \u201c<\/span>existential threat\u201d<\/span><\/a> to college sports in September, now apparently represents the National College Athletic Association (\u201cNCAA\u201d)\u2019s path forward.\u00a0<\/span><\/p>\n

After weeks of pressure to formulate a <\/span>response<\/span><\/a> to California\u2019s Fair Pay to Play <\/span>Act<\/span><\/a>, the NCAA <\/span>announced<\/span><\/a> 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 \u2013 one can certainly bet on a<\/span> parade <\/span><\/a>of bureaucracy, committees, and tepid recommendations \u2013 but the NCAA clearly saw the writing on the wall in the wake of California\u2019s legislation.\u00a0<\/span><\/p>\n

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\u2019s legislation. The <\/span>majority<\/span><\/a> of the bills\u2019 supporters celebrate the law as rectifying <\/span>economic<\/span><\/a> inequalities<\/span><\/a> between<\/span><\/a> the universities, coaches, and administrators profiting off of sports and the student athletes themselves who are barred from compensation beyond their scholarships.\u00a0 By contrast, many <\/span>commentators<\/span><\/a> have situated student athletes\u2019 compensation within a <\/span>broader<\/span><\/a> racial<\/span><\/a> justice<\/span><\/a> framework that seeks relief beyond economic equity for the highest revenue producing sports and players.\u00a0<\/span><\/p>\n

As the NCAA charts its path <\/span>forward<\/span><\/a>, it\u2019s critical that policymakers, activists, and the public seek strategies that highlight the necessity of racial justice and civil rights for student athletes\u00a0 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\u2019 civil rights will generate solutions that only address part of the NCAA\u2019s oppressive system.<\/span><\/p>\n

Such an approach contrasts sharply with the dominant <\/span>free-market view<\/span><\/a> 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 \u201c<\/span>same strengths<\/span><\/a> to this problem that were brought to bear in attacking and breaking down all forms of racial segregation.\u201d\u00a0 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.\u00a0<\/span><\/p>\n

Factually, focusing on the economic inequality between schools and athletes only tells part of the story. Yes, schools benefit <\/span>disproportionately<\/span><\/a> from athletes\u2019 labor. The <\/span>billion-dollar TV deals<\/span><\/a> and million-dollar <\/span>coaching contracts<\/span><\/a> make the NCAA\u2019s 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 <\/span>2007-2008<\/span><\/a>, 92.5% of university presidents at Football Bowl Subdivision institutions and nearly 90% of coaches across men\u2019s Division I teams were European American (white). In contrast, the student athletes in the highest revenue producing sports, football and basketball, are <\/span>disproportionately<\/span><\/a> black. This system, in which white administrators <\/span>punish<\/span><\/a> predominantly black athletes who accept compensation for their labor, has \u201can unmistakable <\/span>whiff<\/span><\/a> of the plantation.\u201d\u00a0<\/span><\/p>\n

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 \u201c<\/span>mere interlopers<\/span><\/a>\u201d 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 \u201cinterloper\u201d status by creating <\/span>racist<\/span><\/a> academic programs for athletes, <\/span>manipulating graduation rate<\/span><\/a>s, and forcing athletes to treat sports as a <\/span>full-time job<\/span><\/a>. In short, academic life for black athletes requires enduring significant racial stigma, while universities frequently fail to deliver on the \u201cstudent\u201d aspect of student athletes.\u00a0<\/span><\/p>\n

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 <\/span>lower <\/span><\/a>graduation rates and an inadequate educational experience are significant in ways the compensation plans being discussed cannot overcome. Black student athletes r<\/span>eport<\/span><\/a> 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 <\/span>the connection between<\/span><\/a> inequities in public education and black athletes\u2019 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.\u00a0<\/span><\/p>\n

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\u2019s current compensation system falters. First, and most prominently, as the NCAA\u2019s claim that student athletes are students, not employees continues to <\/span>lose <\/span><\/a>support, a rights-based approach\u2019s familiarity with <\/span>Title VII<\/span><\/a> can help ensure equality in the distribution of any compensation program\u2019s benefits. Moreover, while the Supreme Court <\/span>held<\/span><\/a> the NCAA was not a \u201cstate actor\u201d for <\/span>purposes<\/span><\/a> of constitutional rights enforcement, <\/span>some <\/span><\/a>legal scholarship has <\/span>pushed<\/span><\/a> for viewing certain NCAA policies and actions as \u201cstate action\u201d for purposes of constitutional enforcement. Given the public\u2019s current skepticism towards the NCAA system, revisiting the state action doctrine, then, could be a powerful tool for advocates. A ruling declaring the NCAA\u2019s treatment of student athletes as \u201cstate action\u201d would secure athletes with the full panoply of constitutional protections. Fighting for greater constitutional protections complement efforts to <\/span>unionize<\/span><\/a> 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.\u00a0\u00a0<\/span><\/p>\n

Second, the rights-oriented framework ties the influence of prominent student athletes to broader social justice struggles.\u00a0 For example, advocates have <\/span>begun<\/span><\/a> calling for black student athletes to <\/span>abandon<\/span><\/a> the NCAA model altogether and attend Historically Black Colleges and Universities (HBCUs).\u00a0 Additionally, black student athletes have <\/span>a long history<\/span><\/a> in using the prominence of sports to challenge objectionable cultural and university issues. In <\/span>a recent example<\/span><\/a>, the University of Missouri football team threatened to boycott an upcoming game unless the university acceded to student organizers\u2019 demand that the university president step down due to \u201cgross negligence\u201d in handling racial justice issues on campus. Asserting <\/span>power<\/span><\/a> in similar circumstances requires both a <\/span>constitutional<\/span><\/a> defense of student athletes\u2019 free speech rights and appreciating the <\/span>historical<\/span><\/a> connection between the civil rights movement, campus protests, and college sports.\u00a0<\/span><\/p>\n

California\u2019s 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 <\/span>significant<\/span><\/a> support is because it doesn\u2019t <\/span>alter<\/span><\/a> the prohibition on universities paying athletes directly. The bill\u2019s appeal is strongly grounded in the free market principles preferred by the NCAA and other opponents of student athlete compensation.\u00a0<\/span><\/p>\n

The bill isn\u2019t 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.\u00a0 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.\u00a0<\/span><\/p>\n

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.\u00a0\u00a0<\/span><\/p>\n

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.\u00a0<\/span><\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

As the NCAA charts its path forward, it\u2019s 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\u2019 civil rights will generate solutions that only address part of the NCAA\u2019s oppressive system.<\/p>\n","protected":false},"author":101924,"featured_media":11952,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center 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