Students Athletes as Employees: The Best Racism Card on the Topic?

McCormick & McCormick, 2010, Robert A. McCormick, Professor of Law, Michigan State University College of Law, B.A., Michigan State University, 1969; J.D., University of Michigan, 1973, Amy Christian McCormick, Professor of Law, Michigan State University College of Law, B.S.B.A., Georgetown University, 1988; J.D., Harvard Law School, 1Texas Review of Entertainment & Sports Law, Major College Sports: A Modern Apartheid,
Major college sports in the United States flourish on the basis of an apartheid system so plain that although it may be (and is) ignored, it cannot be denied. This system, made up of numerous NCAA rules, effectively sanctions the exploitation of mostly African-American young men 3 for the enormous pecuniary gain of mostly European Americans associated with major universities, athletic organizations, and corporations, as well as for the great entertainment of millions of mostly European Americans. 4
The central principle upon which this system rests is “amateurism,” 5 and it is upon the amateur ideal that U.S. universities, through the NCAA, seek to justify this regime. Major college sports, however, are amateur only in the pernicious sense that the very persons who are most responsible for creating this product are denied all but a sliver of the great wealth they create. 6 In every other way, major college sports have become a sophisticated, visible, and highly lucrative commercial enterprise. 7 Put differently, although college football and men’s basketball players, who are disproportionately African American, 8 generate fantastic sums of money for a wide array of others, they themselves are forbidden from sharing in those riches. Instead, while NCAA rules obligate players to live by a code of amateurism that forecloses any real opportunity to earn compensation for their labor, 9 that precept does not apply to university officers, coaches, athletic directors, conference commissioners, corporations, or NCAA officials, who are predominantly of European descent, 10 and who alone may enjoy the bounteous wealth created in substantial part by the players. 11
The regime that keeps a young athlete in this modern form of servitude has several legal components and begins even before he enrolls in college. 12 A football or men’s basketball player who has signed a National Letter of Intent and matriculated at an NCAA institution may not transfer to another school except under conditions not imposed upon any other university student. 13 Then, once enrolled, the amount of financial aid he may earn, or even receive by way of gift, 14 is limited to tuition, room, board and books. 15 At the same time, he is forbidden from receiving compensation for the only things that could likely bring him real value – his athletic skill and fame. 16 His scholarship may be granted only on a semester-to-semester or a year-to-year basis, 17 and its renewal may be denied at the sole discretion of the coach. 18 Indeed, unlike any other person at the university, he may not even hire a lawyer to help him navigate a future career. 19 These rules, like Gulliver’s restraints, 20 effectively hold these young men in economic servitude to their universities.
By restricting athletes’ compensation to the cost of attending a university, the NCAA has enabled its members to sharply restrict the cost of this particular, yet essential, labor. And while the NCAA, its member universities, and many others reap billions of dollars in revenues from college sports, the average “student-athlete” earns less than the federal minimum wage 21 and many live below the poverty line. 22 Simultaneously, an array of others harvests the fruits of these athletes’ labor from a variety of sources including the sale of television rights, ticket and apparel sales, and advertising revenues from corporate sponsors or “partners.” 23 Indeed, the revenue generated in substantial part by the labor of college football and men’s basketball players has grown fantastically, so that NCAA sports has become a $ 60 billion dollar industry. 24
While it scarcely requires documentation, the facts easily demonstrate that the population of persons to whom these rules apply is overwhelmingly disproportionately African American 25 and that the universe of persons profiting from their enforcement is vastly disproportionately European American. 26 In short, a matrix of NCAA rules keeps these mostly African-American young men generating vast sums of money for the benefit of predominantly European Americans thereby enshrining an apartheid system in which racial minorities are held in legal servitude for the profit and entertainment of the racial majority. 27
These are sharp words, but the facts are indisputable. Our purpose here is to examine the racial implications of certain NCAA rules which, in their application, economically restrain and burden mostly African-American young men. 28 By these rules, such athletes are treated separately and differently from coaches, administrators, corporations, and all others involved in the college sports industry. 29 In this way, like the separation policies of the former South African system, NCAA rules maintain an apartheid regime which applies different rules to different classes of people, thereby allowing a favored race to capture the wealth created by a disfavored one. 30
We do not allege that these NCAA rules are facially discriminatory or that they were created for a racist purpose. Instead, while neutral on their face, these rules have been established by U.S. universities through their association – the NCAA – to advance a facade of amateurism in major college sports, allowing them to retain for themselves the pecuniary rewards of dazzlingly successful commercialization. These facially neutral rules, however, have an overwhelmingly disparate economic impact in their application upon a distinct racial minority, 31 and under sound principles of U.S. law, neutral rules, even among private parties, that disproportionately burden racial minorities in significant economic ways require a legitimizing purpose. 32 In this instance, the only justification for the rules that forbid these young men from reaping the fruits of their labor is “amateurism,” and as we will show, that justification is illusory and demonstrably false. 33
Neither do we deny that there is much good in college sports nor that college sports enable many African-American, and other young people to receive the benefit of attending a university without financial cost. Moreover, we are well aware that participation in athletics may provide critical lessons in discipline, teamwork, dedication to purpose, and other virtues for many. 34 At the same time, however, we seek to reveal that the NCAA system of rules, as a whole, creates a modern apartheid system whereby racial minorities are bound by rules that have them serve and create profits they may not receive themselves, but that are reaped by others. That being the case, unless our universities reform this regime by sharing the wealth of this product with its athletes in much more significant ways, they must suffer history’s condemnation.
Part I of this article will show how this modern form of apartheid has roots in ancient civilization as well as in colonial and pre-Civil War America 35 and that the “amateurism” distinctions mouthed by the NCAA today grew out of nineteenth century British class distinctions. 36 It will also describe the employment rules of the South African apartheid system and demonstrate how those economic policies reserved the wealth created by black laborers for the benefit of the white population. 37 Part II will describe the rules by which the NCAA and its members ensure that the profits earned by athletes are reserved for those institutional members, while foreclosing any opportunity for the athletes’ meaningful economic advancement and simultaneously indenturing athletes to their respective institutions. 38 Part III will describe the remarkable riches that these NCAA rules preserve for the many actors in the college sports enterprise other than the athletes – the NCAA, its member universities, the athletic conferences, coaches, administrators, and the corporations that sponsor NCAA sports. 39 Part III will also illustrate that which is already obvious – that major college sports flourishes on the shoulders of predominantly African-American young men who provide entertainment and produce vast wealth for the enjoyment and economic betterment of European Americans in a modern form of apartheid.

As described in Part IV, settled principles of U.S. law establish that when economic actors and governmental entities enforce facially neutral rules that economically burden racial minorities in grossly disproportionate ways, they must justify those rules as manifestly related to a legitimate purpose. 41 In this instance, the NCAA justifies its rules on the grounds that they promote college sports as amateur activities. Amateurism, however, plainly fails as a legitimizing factor because, of course, major college sports are anything but amateur. The young men whose labor substantially creates the product are not college students who happen to play football and basketball for pleasure after class. They are highly skilled athletes whose labor creates a fantastically lucrative commercial product for everyone but themselves. And thus, until the members of the NCAA – our U.S. universities – acknowledge the commercial nature of the college sports industry and lift the ban on payment for athletic services for these young men, 42 their shameful legacy will be the knowing maintenance of a modern system of apartheid.