Today’s guest Op-Ed is from Paul McDonald. Mr. McDonald is Co-Counsel for the College Athlete Plaintiffs in Johnson v. NCAA and named by Sports Illustrated as one of The 20 Most Influential Black Figures in College Football.
In July, the U.S. Court of Appeals for the Third Circuit issued a stunning rebuke of the NCAA for an offensive, race-related argument made in Johnson v. NCAA, the case comparing college athletes to fellow students employed in Work Study-style programs.
The NCAA opposes college athletes having the same employee rights and protections as student ticket-takers, student seating-attendants and student food concessions workers at NCAA contests. Since Berger v. NCAA was filed in 2014, the NCAA has made its argument by relying upon legal precedent to compare college athletes to unpaid prison labor under the 13th Amendment “slavery exception.”
Yet sports media has largely, and inexcusably, failed to cover this outlandish argument at the time of this writing.
Yes, the NCAA referenced the same “slavery exception” discussed in “13th,” Ava Duvernay’s award-winning Netflix documentary, in which “scholars, activists and politicians analyze the criminalization of African Americans and the U.S. prison boom.”
To recap, the 13th Amendment abolished slavery and involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.”
Vanskike v. Peters is the seminal case establishing that prisoners, therefore, are precluded from recognition as employees under federal laws.
The NCAA has relied upon Vanskike v. Peters to argue that its tradition of amateurism should be given the same legal deference, and legal effect, as this “slavery exception,” i.e., that NCAA members have the right to treat college athletes like convicted prisoners rather than like fellow students employed in campus offices, libraries, dining halls, and NCAA venues.
In the Berger case, the Seventh Circuit inexplicably allowed this.
Fast forward to this summer. In its opinion in the Johnson case, at pages 38-9, the Third Circuit strongly rebuked the NCAA’s argument:
We disagree with [the] comparison of college athletes to prisoners and refuse to equate a prisoner’s involuntary servitude, as authorized by the Thirteenth Amendment, to “the long-standing tradition” of amateurism in college athletics.
But sports media said nothing.
The Third Circuit first expressed its disapproval of the NCAA’s argument during a February 17, 2023, hearing. At the time, The New York Times reported:
“Ridiculous,” [Senior Circuit Court Judge Theodore] McKee chimed in when the Vanskike case was mentioned …. It was unclear whether McKee was dismissive of the legal grounds or offended by the comparison of college athletes to prisoners, or perhaps both.
In May 2023, the Rev. Al Sharpton and NFLPA issued a joint statement denouncing the NCAA’s prison labor comparison and noting that, “[w]hen the U.S. Soccer Federation opposed equal pay with the sexist argument that the Women’s National Team does not work as hard as the Men’s National Team, there were repercussions for those responsible and aware.”
But sports media said nothing.
Indeed, sports media immediately, and roundly, condemned the U.S. Soccer Federation, resulting in the resignation of the U.S. Soccer Federation president.
Sports media has also condemned insulting comparisons of athletes to prisoners and slaves, e.g., the former Houston Texans owner‘s reference to black players protesting racial injustice as “inmates running the prison,” and the former Texas Tech men’s basketball coach’s Biblical reference to slaves serving masters during a coaching session.
Each of these circumstances warranted condemnation.
So does the NCAA’s argument “equat[ing] a prisoner’s involuntary servitude, as authorized by the Thirteenth Amendment, to ‘the long-standing tradition’ of amateurism in college athletics.”
The NCAA’s argument is offensive to all college athletes.
That said, it is a particular affront to the history, and dignity, of black college athletes, who are over-represented in the highest-revenue sports—football and basketball—and most of whom are descendants of slaves.
This demands accountability at the highest levels of the NCAA—and the Southeastern Conference (SEC), which filed an Amicus Brief in the Third Circuit supporting the NCAA’s argument. But, as in other aspects of the nation’s life, there is rarely accountability without media informing the public.
Since this is football season, consider this Op-Ed a hand-off to sports media, which, to make its living, relies upon access to black people in college and pro sports.
I implore sports media to run with this story, call this flagrant foul, and respect black history and dignity.
For more about Johnson v. NCAA, e.g., how all D1 College Athletes pass the Third Circuit’s employee test, take a listen to this podcast.
