Abstract
California recently passed the Fair Pay to Play Act, allowing college athletes to be paid for endorsements, making income off of their likeness. While many people are heralding this bill, we propose that sports revenue could be used to decrease the racial education gap in the local communities that are often preyed upon by elite sports programs.
California recently passed the Fair Pay to Play Act, allowing college athletes to be paid for endorsements, making income off of their likeness. While many people, including LeBron James, are heralding this bill as a “game changer,” we argue that the complexity of legal ramifications is being overlooked. Instead, we propose that sports revenue be used to decrease the racial education gap in the local communities that are often preyed upon by elite sports programs.
California recently passed the Fair Pay to Play Act, allowing college athletes to be paid for endorsements, making income off of their likeness. While many people, including LeBron James, are heralding this bill as a “game changer,” we argue that the complexity of legal ramifications is being overlooked.
Historically, what defined college sports were the twin principles of its identification with academic traditions and amateurism. Under the amateur or educational structure model, the primary obligation of the educational institution is to provide the athlete with a realistic opportunity to obtain a valuable degree. However, the amount of funding that colleges and universities provide to student-athletes is limited to the athletes’ cost of attending their institution.
The amateur model makes sense for most college sports. Still, the National Collegiate Athletic Association (“NCAA”) Division I Football Bowl Subdivision (FBS Football) and Division I Men’s (men’s) basketball, tend to generate almost all the revenue needed to fund their institution’s entire athletic program—as well as a substantial percentage of the revenues received by the NCAA. Whether the amateur model makes sense for revenue, as opposed to participatory sports, is a different question.
To further complicate the analysis is the fact that a majority of the elite athletes in these two revenue-generating sports are Black. As a result, the amateur model is often critiqued for its potential racially exploitative outcomes. Both sides of this debate tend to perceive the issue of racial exploitation in terms of whether the income generated by revenue sports should be divided between the athletes or the NCAA and its member institutions.
Even if the NCAA allowed its member institutions—voluntarily or as a result of court injunctions resulting from antitrust litigation—to compensate athletes beyond the cost-of-attendance scholarships, there is a virtual legal minefield of potential problems to navigate. If educational institutions pay student-athletes, it could be argued that income generated by these “students” is unrelated to the institution’s educational mission. If it is, that income would become subject to federal income taxes.
Beyond this issue, for several other legal purposes, paying athletes also runs the risk that they become employees. Such a determination carries with it various legal concerns, including federal income taxes, state income taxes, unemployment taxes, as well as social security and Medicare contributions by both the athletes and their institutions, workmen’s compensation issues, increased tort liability for colleges and universities through the application of respondeat superior, and increased constitutional due process protections for athletes at public colleges and universities. Educational institutions must, additionally, comply with Title IX, which requires equal treatment of all athletes (though not employees) regardless of gender.
Working out the legal issues involved with providing substantial revenues to athletes will take many years. In the meantime, the revenues generated by college sports will continue to increase. Thus, we propose a different way to approach this issue to break a three-decade-old deadlock.
Raising the question about the possible racial exploitation of the amateur model applied to revenue sports requires that we have an understanding of the concept of race discrimination. The predominant legal definition of racial discrimination is based on the existence of discriminatory intent. To prove discriminatory intent, more is required than merely establishing that the actor or decision maker was aware of the racial consequences of an otherwise neutral policy. The relevant decision maker must adopt the policy or take the action at issue because of—not merely in spite of—its adverse effects on an identifiable racial group. This is the definition of racial discrimination contained in the equal protection clause of the Fourteenth Amendment, which applies to public colleges and universities because they are governmental entities. It is also the definition used in lawsuits derived from Title VI of the Civil Rights Act of 1964 that applies to all colleges and universities because they receive federal funds.
UCA vs. Hendrix
University of Central Arkansas, Flickr CC
The above is also the definition of race discrimination under Section 1981, which applies to the NCAA and all of its member institutions. Thus, the reality that the NCAA and its member institutions are aware of the fact that Black male athletes are generating the revenue that is benefitting so many others is irrelevant from the point of view of this definition of racial discrimination. And, no one could seriously contend that the amateur model was instituted by the NCAA and its member institutions motivated by a conscious desire to discriminate against Blacks.
Beyond the predominant legal definition of racial discrimination, another notion of racial exploitation is centered on a concept of race discrimination, not in terms of the motives of an actor, but the effects of the actor’s conduct. These negative effects may result in part from discriminatory intent. Still, they may also result from unconscious racism, the use of stereotypes, or institutional racism—specifically formal or informal structural mechanisms such as policies and programs that work to systematically produce disproportionately negative consequences on under-resourced minorities. It is from this latter viewpoint—discriminatory effects—that issues about the racially exploitive nature of the amateur/education model applied to revenue sports make the most sense.
If the question regarding limits on compensation to FBS football and men’s basketball players is viewed from the perspective of its discriminatory effect, then the concern should be about the impact on the entire Black community, not just elite Black male athletes. While Black male student-athletes often encounter negative stereotypes, such as “the dumb jock”, these stereotypes also negatively impact the educational experiences of other Black students.
One of the most destructive stereotypes of Blacks in American society, particularly males, is that that black men are aggressive, dangerous predators, and prone to violence. Several studies have found that the representations of Black athletes reinforce this view of Black males; because of their fame and popularity, the off-field activities of athletes in revenue sports receives substantial media coverage. Much of America is, therefore, treated to images of Black college players engaged in violent and criminal acts.
Beyond the off-field activities, football and basketball—especially football— are violent games. Football is a “combat sport” centered on high levels of aggression and violence. Watching college football exposes Americans weekly, every autumn to images of Black males engaged in violent activities. These views of Black males on the field fuel and sustain the stereotype that all Blacks are aggressive, naturally threatening, and prone to violent conduct. Thus, these sports have indirect negative consequences on other Blacks.
Looking at the interest of the entire Black community also reveals other potential solutions to the issue of racial exploitation of the structure of revenue sports. There is reason to suggest that the NCAA and its member institutions should provide additional financial assistance from its revenue sports to programs to increase the college attendance and participation rates of all Blacks. Having Division I institutions focusing on these factors also takes advantage of their existing educational expertise. These programs not only could assist Blacks that are currently on the campuses of Division I schools but also help middle and high school students in predominately Black school districts throughout the country to enroll in colleges/universities at much higher rates.
Rather than paying a select group of elite college athletes, we propose using financial resources to invest in the future equitable success of the local Black communities that are often neglected by the large universities that sit in or near their neighborhoods.