NCAA Doubles Down On Comparing Student Athletes To Prisoners

You know your organization is corrupt when it's looking for loopholes in the 13th Amendment.

The business model of the NCAA (the National Collegiate Athletic Association) relies on unpaid labor. It achieves tremendous profits by not paying the workers who create the wealth. All institutions that have existed thanks to unpaid labor make ridiculous arguments to defend their lordship over the labor. Feudal barons said that they were magnanimously giving the serfs a place to live. American slaveholders and their fans like Bill O’Reilly said, “Slaves that worked there were well fed and had decent lodgings provided by the government.”

The NCAA is no different. It’s willing to deploy paternalistic arguments, racist arguments, Greco-Roman arguments, and anything else it can think of to avoid paying college athletes. Power concedes nothing without a demand. The NCAA will ride the backs of its young profit centers until the system is toppled.

Still, the current iteration of the NCAA’s articulation for why student athletes should not share in the profits they create is really hurtful. In the context of our current administration — where Nazis and MAGAers are riding triumphant — it’s really painful when the organization reduces college athletes, many of whom are black, to the condition of mere prisoners. We’ve come to expect this kind of thinking from the President of the United States. But, somehow, we expect better from a cartel of athletic directors who are supposed to be “educators.”

They are not better. Over on the Intercept, Shaun King caught the latest metastasis of the NCAA’s pro-slavery arguments.

College sports is a business – a very lucrative business.

That very obvious dynamic undergirds a lawsuit filed by former NCAA athlete Lawrence “Poppy” Livers asserting that scholarship students who play sports are employees and deserve pay. The Livers case argues that student-athletes who get scholarships should at least be paid as work-study students for the time they put in.

What the NCAA did in response to the lawsuit is as vile as anything going on in sports right now. I had to see it for myself before I believed it. At the root of its legal argument, the NCAA is relying on one particular case for why NCAA athletes should not be paid. That case is Vanskike v. Peters.

Only there’s an important detail: Daniel Vanskike was a prisoner at Stateville Correctional Center in Joliet, Illinois, and Howard Peters was the Director of the state Department of Corrections. In 1992, Vanskike and his attorneys argued that as a prisoner he should be paid a federal minimum wage for his work. The court, in its decision, cited the 13th Amendment and rejected the claim.

For the uninitiated, the argument is shocking. I’m glad King is outraged because it reminds me that I shouldn’t be so numbed to this line of reasoning.

But unfortunately, the NCAA has been citing the Vanskike case for years. A core part of the NCAA’s argument is that the 13th Amendment ALLOWS FOR SLAVERY for prisoners, and college athletes are more like prisoners than they are like free men and women. They keep coming back to the argument because it works for them. In the Livers case, the NCAA isn’t even relying on Vanskike, it’s relying on Berger v. NCAA.

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Berger is a Seventh Circuit case that came out in 2016 (yeah, 2016, not 1916) that directly applied Vanskike’s reasoning to college athletes to decide that, like prisoners working in a prison, there was no employment relationship between the NCAA and its athletes. Therefore, the schools didn’t have to pay them a minimum wage in accordance with the Fair Labor Standard Act (FLSA). From the Berger opinion:

We have declined to apply multifactor tests in the employment setting when they “fail to capture the true nature of the relationship” between the alleged employee and the alleged employer. Id. In Vanskike, we considered whether an inmate at a state prison was an employee under the FLSA. Id. at 806. Like Appellants here, the inmate in Vanskike urged us to apply a multifactor test to determine whether an employment relationship existed. We rejected the application of that test because it was “not the most helpful guide in the situation presented.” Id. at 809. Rather than follow a specific test, we examined the economic reality of the alleged employment relationship and concluded that the prisoner was not an employee…

Appellants in this case have not, and quite frankly cannot, allege that the activities they pursued as student athletes qualify as “work” sufficient to trigger the minimum wage requirements of the FLSA. Student participation in collegiate athletics is entirely voluntary. Moreover, the long tradition of amateurism in college sports, by definition, shows that student athletes—like all amateur athletes—participate in their sports for reasons wholly unrelated to immediate compensation. Although we do not doubt that student athletes spend a tremendous amount of time playing for their respective schools, they do so—and have done so for over a hundred years under the NCAA—without any real expectation of earning an income. Simply put, student-athletic “play” is not “work,” at least as the term is used in the FLSA. We therefore hold, as a matter of law, that student athletes are not employees and are not entitled to a minimum wage under the FLSA.

The Livers case isn’t being brought under the FLSA. Livers argues that his sport should be eligible for work-study compensation. If you’ve never been on student financial aid (first of all, F.U.), you might not know about work-study, but essentially there are a number of campus jobs a student can do to offset his financial aid burden and make a little bit of spending money. In my college, “dorm crew” was a very lucrative work-study job that involved the poor students running around and cleaning up after the rich ones. I never did it because I’ve got too much Stark in me to bend the knee, but I was able to get a work-study job in the library until I cursed out my boss and was fired (I’m… special).

I’d think that Livers’s argument was stronger than the one in Berger, since there’s no work-study limitation on what can be defined as a “job.” But that brings us back to Vanskike and the 13th Amendment. Prisoners, quite obviously, work. But the prisons don’t have to pay for the labor because uncompensated servitude is allowed by the 13th Amendment if a person is a prisoner. It would seem that student athletes should be treated materially differently.

But if we follow Berger and Vanskike, students will once again be told that their work doesn’t count as a “job” and therefore it’s okay to deny college athletes work-study. It’s a loophole in the 13th Amendment that the NCAA is trying to exploit.

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The NCAA is entirely willing to equate their students with prisoner laborers. We should never forget how cynical and evil that is.

The NCAA Says Student-Athletes Shouldn’t Be Paid Because the 13th Amendment Allows Unpaid Prison Labor [The Intercept]


Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.