Black Labor, White Profits, and How the NCAA Weaponized the Thirteenth Amendment

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The National Collegiate Athletic Association (NCAA) has been in the news a lot lately, and not for the reasons they’d wish. An FBI investigation into illegal payments to recruits and other sordid transgressions has roiled NCAA men’s basketball, and already brought down one of that sport’s all-time winningest coaches, the University of Louisville’s Rick Pitino. Now new revelations from Yahoo Sports implicate the most prominent programs (such as Duke, UNC-Chapel Hill, and Kansas) in the same sort of transgressions for which Pitino lost his job. The shocking negligence of Michigan State University in the matter of Dr. Larry Nasser’s serial sexual abuse has awakened the echoes of the Jerry Sandusky case at Penn State–particularly in the increasingly vocal criticisms of the NCAA and its member institutions’ apparent inability to ensure the safety of their athletes.

Hovering above all of this, as it has for years, is the persistent debate over the definition of “amateurism” and the growing consensus that the NCAA is egregiously exploiting its unpaid student athletes, particularly in the big-money sports of football and basketball (these sports’ top programs generate over 9 billion dollars in revenue annually). Every time a rules violation involving cash or other goods being funneled to an athlete crops up, so does the question of paying athletes. The defenders of the “amateur” ideal, most prominently the NCAA itself, argue that these athletes receive a college education either free or at a significant discount, and that is more than sufficient compensation. Paying athletes, they argue, would lead to an “arms race” between high-powered collegiate athletic programs, and corrupt the integrity that lies at the heart of amateur athletics.

Critics scoff at this logic, saying that the “corruption” horse has long since left the barn. There already is an athletics arms race, they continue; the stratospheric salaries of big-name coaches are ample evidence of that. And why should the coaches and the schools make millions of dollars off the unpaid, and often hazardous, labor of student-athletes? The NCAA Men’s Basketball Tournament makes a lot of people a lot of money, but none of them are the student-athletes. A full athletic scholarship is certainly nothing to sneeze at, but a career-ending injury lurks around the corner of every play on the court or the field, to say nothing of the growing knowledge we have of the long-term effects contact sports like football have on athletes’ brains. Don’t athletes deserve the same type of workplace wages and benefits to which most other U.S. workers are legally entitled? There are no easy answers when billions of dollars are at stake.

Further complicating the debate is the issue of race. The spectacle of administrators and executives, most of them white, refusing to contemplate paying the athletes, most of them black, in revenue-producing sports like football and basketball is a troubling echo of this nation’s longstanding tradition of white profits wrung from black bodies. A white coach being paid millions of dollars a year based upon the success of majority-black teams can appear disturbingly similar to a nineteenth-century plantation master whose political and social clout rested upon the cotton grown by “his” enslaved people. [1] Defenders of the NCAA’s stance on “amateurism” argue that players should be happy to have a scholarship, that the benefits of a free college education are ample recompense. They are often unaware, though, that these admonitions bear more than a passing resemblance to the injunctions from generations of whites for black people to “be happy with what you have.” Each and every one of these dismissals is a stark reminder of how any degree of meaningful “freedom” for people of color in the United States has so often been contingent upon the whims of powerful whites.

Those parallels–the playing field and the plantation–sit squarely in the spotlight once again after the latest round of briefs in the case of Livers v. NCAA currently before the US District Court in the Third Circuit. Lawrence “Poppy” Livers, a former Villanova University football player, filed suit against the NCAA and Villanova (the nineteen other NCAA schools from the Third Circuit are also named as co-defendants) seeking application of the Fair Labor Standards Act to student-athletes. The Fair Labor Standards Act (FLSA) of 1938 (and amended multiple times since) is the law that guarantees, among other worker protections, a minimum wage and extra pay for overtime work [2]

Livers’s suit argues that athletes participating in intercollegiate sports are “employees” engaged in interstate commerce, and thus meet the criteria for the FLSA’s guarantees. The NCAA, as you might imagine, sees this claim as an existential threat to its “amateurism” model, and have filed a motion to dismiss the lawsuit.

In their motion, the counsels for the NCAA and the member universities take issue with the claim that Livers met the definition of “employee” when he stepped on Villanova’s football field and represented the university in an intercollegiate athletic contest. Student-athletes, the motion to dismiss argues, are like any other participant in any other student organization–they take advantage of an opportunity provided by the college or university to participate in an extra-curricular activity as part of their education; there’s no material difference, the NCAA suggests, between being a linebacker on the football team and singing in the glee club. The motion also asserts that the litmus test for being an “employee” in the eyes of the FLSA is “economic reality” rather than “technical concepts.” [3] Established precedents, it goes on to say, upholds the “amateur” status of NCAA athletes due to the fact that “not paying student-athletes is precisely what makes them amateurs” [emphasis in original]. We shouldn’t pay student-athletes, the NCAA claims in a remarkable example of circular reasoning, because they are amateurs–and why are they amateurs? Because we don’t pay them. And this is the logic of the NCAA’s argument: that wages mandated by the FLSA don’t apply to amateurs, and student-athletes are amateurs because they don’t receive wages. It’s a logical fallacy, but it’s worked. Federal District Courts have either dismissed or ruled against the plaintiffs in previous suits against the NCAA using precisely this reasoning. What’s really disturbing, though, is the legal precedent upon which the NCAA rests its motion for this denial of employee status to student-athletes (and thus the denial of wages or workplace protections); in particular, one case–the 1992 Seventh Circuit Court’s decision in Vanskike v. Peters–is the foundation for almost all of the NCAA’s (and, by extension, its co-defendants’) argument in this regard.

The Vanskike case wasn’t about athletics or amateurism, though.

It was about prison labor.

Daniel Vanskike was an inmate at the state prison in Joliet, Illinois. As a prisoner, Vanskike was forced to labor in a variety of tasks: custodial work, kitchen staff, “knit shop piece-line worker.” He filed a complaint with the Illinois Department of Corrections, asserting unpaid labor was a violation of his rights, as he was entitled to the federal minimum wage under the FLSA. The corrections department rejected his complaint, so Vanskike and his attorneys went to district court, which ruled to dismiss his complaint. The district court, in a decision which was upheld in the Seventh Circuit on appeal, pointed to the Thirteenth Amendment’s “loophole clause” in its claim that Vanskike did not meet the definition of “employee.” As has been most recently pointed out by the documentary 13th (full disclosure: I appeared in the film), this exception to emancipation–“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction”–has cast a long shadow over the history of race, incarceration, and labor in the United States. In Vanskike’s case, it was used to declare “the relationship between the DOC and a prisoner is far different from a traditional employer-employee relationship, because…inmate labor belongs to the institution…The Thirteenth Amendment excludes convicted criminals from the prohibition of involuntary servitude, so prisoners may be required to work.” Prison labor, as 13th so powerfully demonstrates, has long been a tool of coercion used by the state and by capitalists (indeed, the two overlap significantly) to extract labor from unfree Americans without compensation or protection. For the NCAA to use the courts’ sanctioning of what can be termed as prison slavery as the main legal prop for their own refusal to treat student-athletes as legally-protected employees is at best problematic, and at worst abhorrent.

This cynical use of the Vanskike case has not gone unnoticed. Writing in The Intercept, Shaun King furiously denounced the NCAA in a piece headlined “The NCAA Says Student-Athletes Shouldn’t Be Paid Because the 13th Amendment Allows Unpaid Prison Labor.” To be fair, the NCAA didn’t put it that directly; their argument is more like student-athletes shouldn’t be paid because the Vanskike case says they aren’t employees. BUT…the NCAA and its co-defendants (we certainly shouldn’t let these individual institutions off the hook) are able to so blithely make this claim through a direct equation of student-athletes and prison slavery. [4] Hell, this isn’t even the first time the NCAA has done this; in the 2016 case of Berger v. NCAA (note: also decided in the Seventh Circuit, also in favor of the NCAA), the NCAA used the Vanskike case to make a similar claim, and has now liberally peppered its motion to dismiss the Livers case with references to the Berger opinion. To argue against student-athletes receiving wages or workplace guarantees, then, the NCAA has essentially resorted to a recursive loop of prison labor jurisprudence.

What does this say about the NCAA’s perception of the student-athletes from whose uncompensated labor it, and its member institutions, so handsomely profit? Even if one doesn’t agree with King’s assertion that the NCAA is explicitly endorsing slavery in its motion to dismiss the Livers lawsuit, it’s hard to deny that vigorously (and repeatedly) equating student-athletes with prison inmates forced to labor is a really bad look. In a country whose history is so rife with coerced, uncompensated labor by people of color–mandated by law and maintained through violence–for the NCAA to embrace this position is stunning in both its ignorance and arrogance.

Placing student-athletes, a sizable portion of them African American, in the same legal category as prison labor evokes some of the uglier and more painful parts of our history. After the Civil War, most whites of the erstwhile Confederate States resisted the imposition of a postbellum order as much as they could. In particular, emancipation–effected by enslaved peoples themselves during the war, as well as federal policy–represented an unthinkable reversal of the socio-political order for a majority of southern whites. Violent white backlash against formerly enslaved African Americans seeking to claim their rights prompted waves of terrorist activity throughout the former Confederacy, ranging from anti-black pogroms in Memphis and New Orleans in 1866 to the “night riders” of such organizations of the Ku Klux Klan. Working hand in glove with this campaign of violence were efforts within the legal mainstream to nullify as much of emancipation’s reach as possible. In particular, mass incarceration of blacks became the weapon of choice for southern revanchists. The Thirteenth Amendment’s “criminal exception” language opened the door to the perpetuation of race-based slavery through the development of a network of jails, penitentiaries, and prison farms throughout the South–some of them on converted plantations where black convict laborers labored in the same conditions as enslaved blacks had prior to the war. In 1871, Virginia’s supreme court codified what had by that time largely become standard operating procedure in the postbellum South. Prisoners, the court declared in its decision in the case of Ruffin v. Virginia, were “slaves of the state.” And, in ebbs and flows since, slavery has continued to exist in the United States via the increasingly powerful prison-industrial complex. Labor performed by these “slaves of the state” for the profit of others is a fundamental feature of the system, from the chain gangs of leased convicts that dotted the late nineteenth century southern landscape to today’s inmates manufacturing products for a variety of private corporations. From then till now, forced labor without any of the wage or workplace protections that the rest of the laboring classes are entitled to has been further entrenched and codified in the prison system. The 1990 Crime Control Act universalized this practice by mandating that all inmates in federal correctional facilities be put to work. At best, inmates can hope for penny-ante wages that they can use to buy goods in a prison commissary that’s jacked up their prices to usurious levels. In most cases however, this labor is stolen from them; they are alienated from both the process and product of their work. In the United States, because of the racist operation of law enforcement mechanisms (from stop-and-frisk policing to the enormous arrest and sentencing disparities for drug-related offenses), it has always been–and continues to be–black people who have borne the brunt of this enslavement by incarceration.

This is the pool in which the NCAA has decided to swim. We may think that the star quarterback of a powerhouse football team has it better than the inmate in the prison metalshop, but the NCAA is doing its best to render the two situations equal in the eyes of the law. In its cynical (or ignorant; I can’t decide which it is, or which is worse) decision to rest its argument on the Berger and Vanskike cases, the NCAA–and twenty of its member institutions–are making the claim that student-athletes should be barred from federal workplace guarantees because they occupy the same status as prison labor. They are making this claim even in the face of centuries’ worth of whites’ expropriation of black bodies and black labor, much of which has occurred via the prison system. They have decided that the charade of “amateurism” is worth defending, even if they have to open the foulest vein of US history to do so.

The plaintiff’s lawyers in the Livers case, in their scathing response to the NCAA’s motion to dismiss, point directly at this morally bankrupt strategy: “Defense counsel’s insistence that Vanskike be applied here is not only legally frivolous, but also deeply offensive to all Scholarship Athletes–and particularly to African-Americans.” Are the NCAA and its member institutions equating student-athletes (particularly black student-athletes) with slaves? They would certainly deny any intent to do so. But the invocation of case law that relies upon the notoriously unjust exception to emancipation, a loophole that has caused so much damage and injustice to black communities, is the choice they made, and whether or not the NCAA believes athletes are slaves, they are making a legal case for treating them as such. In the big-money sports environment, where the historical pattern of white profit from black bodies is so manifestly apparent, it’s alarming that such morally opprobrious precedent would be used by the NCAA to deny the agency and worth of the athletes who quite literally create the huge profits it enjoys. We aren’t trying to say athletes are slaves, the NCAA says; it’s more complicated than that. But as those in the world of college athletics certainly know, you are what your record says you are. By pinning its professed right to treat student athletes as unpaid “amateurs” on the Vanskike case, which in turn rests on the Thirteenth Amendment’s loophole, the NCAA’s record is clear indeed. It’s a record of exploitation, incarceration, and virulent racism–impulses that underpinned slavery, Jim Crow, and our present-day crisis of mass incarceration.

Is this an unfair characterization? Are these criticisms overblown? Is this just “playing the race card?”

Well, read the case documents. Read the NCAA’s own words, and see the principles on which they’ve built their case. Read why the NCAA and its member institutions say that student-athletes should not be paid, and why they’re not worthy of the legal rights to which US workers are entitled.

Then, remember: You are what your record says you are.

  1. [1] For much more on this parallel, see the foundational works by Harry Edwards (Revolt of the Black Athlete) and Billy Hawkins (The New Plantation: Black Athletes, College Sports, and Predominantly White NCAA Institutions).
  2. [2] The FLSA also outlawed child labor. Its provisions covered any good produced for interstate commerce, but the practical effect was to set the conditions throughout the labor market.
  3. [3]It shouldn’t go unnoticed that this line of reasoning echoes many of the arguments used to defend chattel slavery in the antebellum era: “technical concepts” like “rights” or “liberties” don’t supersede the “economic reality” of slave labor being vital to (white society) and the larger benefits whites claimed slaves received from their position in “the peculiar institution.”
  4. [4]Yes, I use the phrase “prison slavery” intentionally and, I believe, accurately. Forced labor without compensation, where the laborer has no rights and is (in the words of Orlando Patterson) “socially dead,” is slavery.