NCAA's legal justification for not paying athletes?

Football Insider Board
#1

I was flabbergasted when I saw this one.

Those of us who are neither lawyers nor constitutional scholars may be forgiven for not knowing that the 13th Amendment to the Constitution left a little wiggle room when it banned slavery:

[quote]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.
[/quote]

In a federal court case brought by an Illinois prisoner, the court ruled in 1992 that the above boldfaced phrase permits prisons not to pay its inmates minimum wage for the work that they do at the prison – farming, laundry, making license plates, whatever.

All well and good. It doesn’t take a legal scholar to read that clause and reach the same conclusion the court did – that prisoners may be subjected to involuntary servitude. Whether you like that or not is another issue, but it’s legally defensible. And it has nothing to do with college sports.

Or does it?

Since that 1992 decision (which was not reviewed by the Supreme Court as far as I know), the NCAA has on three occasions cited it as a legal basis for not paying athletes. That athletes are slave laborers, no better than prisoners. Most recently the NCAA used this argument in response to a class action lawsuit filed by a former NCAA athlete, Lawrence Livers, in Pennsylvania in September 2017. The 1992 case is Vanskike v Peters; you will find the word Vanskike repeatedly in the NCAA’s response, linked here:

<LINK_TEXT text=“https://www.documentcloud.org/documents … it-On.html”>https://www.documentcloud.org/documents/4385598-NCAA-Motion-to-Dismiss-Livers-s-Lawsuit-On.html</LINK_TEXT>

Yes, they are lumping in college athletes with prisoners convicted of rape or murder or dealing drugs. Now undoubtedly a few of the former will wind up among the latter – but they ain’t there yet, and most will never be. And it should not go unnoticed that there is a racial element here – college athletes, like prisoners, have a significantly greater proportion of African-Americans than the general population.

Here’s a discussion of the NCAA reliance on the Vanskike ruling:

<LINK_TEXT text=“https://theintercept.com/2018/02/22/nca … id-prison/”>https://theintercept.com/2018/02/22/ncaa-student-athletes-unpaid-prison/</LINK_TEXT>

#2

First, I do think the NCAA treats the athletes like they live on the NCAA’s plantation.

But… after scanning through the legal documents I think the story and the plaintiffs in the lawsuit are distorting the NCAA’s legal argument. These cases involve whether there is an employment relationship between the schools and the athletes, and the cases cited in the brief all deal with whether not paying particular kinds of people for work violated federal statutory law. The original case about prisoners who did not get paid did bring up the Constitutional Amendment. Subsequent cases have explored other situations where people were performing tasks without pay, I believe people who were in rehab and maybe cosmology school students. The arguments center on whether the people were doing the tasks in the expectation they would be paid money to do so, or were doing so for there own reason and benefit.

As often happens in the law, the old prisoner case got mentioned in the subsequent cases as it touches on a general concept that bore on the issue in those cases, all of which have said that essentially that sometimes people can do work for free that does not violate federal law, be that as part of your rehab program, doing practical work as part of your trade school curriculum, or as part of your prison sentence. But that’s not the same thing as saying the players are the equivalent of slaves.

Citing the case in the brief gave the plaintiff’s lawyers and the friendly reporter a chance to practice their phony outrage. The plaintiff’s lawyers knew the prisoner case was going to come up when they did their own legal research before they filed suit. So they had plenty of time to put the right word in the right journalistic ear and practice their self-righteous and misleading chest beating.

And speaking of self-righteous, I found the NCAA’s description in its briefs of the selfless mission of its members amusing, especially at a time when they are making more off of athletics than ever before. They want the Courts to treat their giant commercial business like it’s a club sponsored by the school that has to do service projects on campus to keep its charter.

#3

In a federal court case brought by an Illinois prisoner, the court ruled in 1992 that the above boldfaced phrase permits prisons not to pay its inmates minimum wage for the work that they do at the prison – farming, laundry, making license plates, whatever.

All well and good. It doesn’t take a legal scholar to read that clause and reach the same conclusion the court did – that prisoners may be subjected to involuntary servitude. Whether you like that or not is another issue, but it’s legally defensible. And it has nothing to do with college sports.

Or does it?

Since that 1992 decision (which was not reviewed by the Supreme Court as far as I know), the NCAA has on three occasions cited it as a legal basis for not paying athletes. That athletes are slave laborers, no better than prisoners. Most recently the NCAA used this argument in response to a class action lawsuit filed by a former NCAA athlete, Lawrence Livers, in Pennsylvania in September 2017. The 1992 case is Vanskike v Peters; you will find the word Vanskike repeatedly in the NCAA’s response, linked here:

<LINK_TEXT text=“https://www.documentcloud.org/documents … it-On.html”>https://www.documentcloud.org/documents/4385598-NCAA-Motion-to-Dismiss-Livers-s-Lawsuit-On.html</LINK_TEXT>

Yes, they are lumping in college athletes with prisoners convicted of rape or murder or dealing drugs. Now undoubtedly a few of the former will wind up among the latter – but they ain’t there yet, and most will never be. And it should not go unnoticed that there is a racial element here – college athletes, like prisoners, have a significantly greater proportion of African-Americans than the general population.

Here’s a discussion of the NCAA reliance on the Vanskike ruling:

<LINK_TEXT text=“https://theintercept.com/2018/02/22/nca … id-prison/”>https://theintercept.com/2018/02/22/ncaa-student-athletes-unpaid-prison/</LINK_TEXT>

[/quote]

I didn’t read any of the links (yet, I will) but one thing that hits me is that the players ARE paid, and paid more than minimum wage. Most are getting paid at least $20,000 a year (at least in the major sports, I realize in the minor sports they are only getting partial scholarships, that could be a problem.)

#4

I didn’t read any of the links (yet, I will) but one thing that hits me is that the players ARE paid, and paid more than minimum wage. Most are getting paid at least $20,000 a year (at least in the major sports, I realize in the minor sports they are only getting partial scholarships, that could be a problem.)

[/quote]

It’s real simple let them go overseas and play! They can get paid and get jerked around. That’s for the small percentage of the athletes that are going to play for a living! There’s a large part of the athletes that benefit from the opportunity and get a degree.
Expand the G league and give the Greaseball “Cal” a job scouting for the NBA on the AAU circuit. That would get rid of the one and dones and Cal. ending the one and done era will end his tenure at Kentucky. Based on all the 5 star pro athletes he has he should never get beat!
He won’t make the second weekend of the Dance either!

#5

I didn’t read any of the links (yet, I will) but one thing that hits me is that the players ARE paid, and paid more than minimum wage. Most are getting paid at least $20,000 a year (at least in the major sports, I realize in the minor sports they are only getting partial scholarships, that could be a problem.)

[/quote]

Agree, they are getting paid and it’s a choice the player and the family makes to take a scholarship that provides room/board/education (along with education assistance/tutoring), medical/physical training and the opportunity to play the sport they love at a high level. A few of them will have the opportunity to make a lot of money at the next level. That number is low for sure but there is that possibility. From what you read in interviews and from the few people I’ve personally known that were full ride athletes, or had children that were, they are usually very happy to have that opportunity. It’s not a requirement, no one forces them to do it - it’s a choice. Yes, the school and the NCAA make money. If they didn’t then we’d not have what we have today in regards to college sports.

To equate this to slavery and to bring race into the conversation is simply wrong and sensationalism at it’s finest.

JMVHO

#6

I didn’t read any of the links (yet, I will) but one thing that hits me is that the players ARE paid, and paid more than minimum wage. Most are getting paid at least $20,000 a year (at least in the major sports, I realize in the minor sports they are only getting partial scholarships, that could be a problem.)

[/quote]

I disagree with $20,000 a year. My son is majoring in computer programming with an emphasis towards video game design. One of the best schools in the nation in that regards is USCw. The total for four years at that institution was $250,000. That’s a little over $60,000 a year. Plus, the NCAA athletes get stipends above the scholarships. I believe that’s the $20,000 you’re referring to. Now, I bring this up because I saw one USCw football player that was majoring in video game design. So, he is getting $80,000 a year to play football. How many on here bring home 80k a year?

That’s the one issue I’ve had with people claiming students aren’t getting paid. Some (as examples above) are.

Now, as for prisoners, I’ve had this discussion on another board. I have a cousin, who has been in and out of prison (not jail) since he was 13. He will get out for about a month and go back. A few years ago, he happened to be out when I was visiting my parents. He stopped to say hi. He was in trouble and on bail, getting ready for trial. He had kids, who have barely seen him, so I asked why he kept going back. He said, he gets free education, free “room and board”, free medical, prisons have commissaries where he can buy what he wants to, free cable tv, etc, etc. we have an aunt that’s in a nursing home, she gets none of that. I’m sure most on here, work their rear’s off for theirs. He said why work? He’s got a point. I think the old fashioned chain gangs should be reinstated. A prisoner should not want to “go back” because it’s easier than working. JMO

#7

I agree, the $20,000 was “at least.” My son is at UofA his scholarship has been worth over the now 4 years well over $100,000.

#8

I think the students getting paid is dependent on how you look at it. Some are saying scholarships really aren’t payment. I disagree. I believe they are. Now, I do think an argument can be made about is the scholarships enough based off what the NCAA and schools bring in based off what the athletes do, but then again McDonald’s pays $7.50 an hour and I’m pretty sure they have a pretty decent profit.

#9

The difference is that noone is paying to watch those people at McDonald’s to work. Just like professional players they are not typical labor producing a product because they ARE the product. The Universities even make money off their “Likeness” because posters with their images are on them.

#10

The players aren’t the product, the game itself is. Most people do not watch college football to follow particular players, because the teams change completely every year or two. I believe most of us would still watch Razorback football regardless of who was on the team.

#11

I disagree. The players are what make the game. Every pro league needs players that the fans want to watch. The UFC does really well when it has fighters that people want to watch, people do not pay for a pay per view to watch everyday people fight and fans would not watch college basketball if they do not have the players. People want to watch good players. There is a reason D-II and D-III does not have the same draw as D-I in all sports, its the players.

#12

Partially agree with both your posts.

On your first post, you have to think. A McD’s worker making $7.50 an hour makes a total of $15,600 a year before taxes. A player (like the USCw player like I mentioned above) makes $20,000 (stipend) plus his college is paid for (room, board, tuition, books, etc) that’s about 60,000. So, he is making $80,000 a year. And getting an education. I believe someone posted the G-League pay on here a few weeks back, I’m not sure they all make that much.

On your second post, to an extent you’re correct. It’s more about talent than the player. People don’t buy UFC tickets to see Alexander Volkov (first fighter listed on the UFC fight card) they buy tickets to see Connor McGregor cause they either want to see him back up his mouth or get his mouth shut. But I’ll guarantee that Volkov doesn’t bring home the same paycheck Connor does, even though they maybe on the same card and both win in front of a packed house. But you still have fighters like Phil Brooks (CM Punk, which supports your claim about the fighter being the draw), who will sell out a paper view even though he’s in his 40’s and is 0-1 in his MMA career.

#13

I haven’t read the cases, but a judicial opinion often contains language that goes beyond what is absolutely necessary to reach the legal result. (There is a Latin phrase lawyers know that describes such language: Obiter dictum or sometimes simply dictum or the plural, dicta.) They are then cited for those portions of the opinion, not for the exact holding. The holdings are binding on lower courts in the same jurisdiction. Dicta isn’t so much. Dicta can be persuasive & a guide to what the court is thinking or might say in a future case that has slightly different facts.

As a lawyer I’ve seen dozens (maybe more) cases that journalists & the public misinterpret and then get outraged at their own misinterpretation. Classic examples are Abington School Dist v. Schempp. & Murray v Curlett Those cases held that a school couldn’t force a child to join in (by force of law or peer pressure) a school prayer or read the Bible as part of a devotional. People have screamed for years that the courts have “taken prayer out of schools” when they did no such thing. Regardless, they use their misinterpretation of the law to get outraged at things the court never said.

On a funny side note, I had a law partner who was asked by law professor when he was in school if he knew what dictum was. He said, “Yeah, that’s when the court screws you a little worse than it needed to.” That’s actually a pretty good definition of the term.

#14

Chip, I gave a quick readthrough of the NCAA not-so-brief I linked above. Not understanding a lot of what I was reading, to be sure, but it looked like some of it was citing another case (Berger, I think) that in turn cited Vanskike. And you would have to look up the relevant citations to find out exactly what part of the ruling was cited. So I can certainly see that what you’re talking about is possible. One thing I remember is that the NCAA said something about the plaintiffs in Berger not meeting some test for employees, implying that college athletes didn’t either.

#15

It takes a while to get a good hang of reading case law. Cases get cited all the time for some rather inconsequential things contained in the opinion. Then the cases that cite the case get cited. Often it’s sloppy work by the attorney citing them. Simple laziness. Lawyers don’t like to read every case they cite or have cited to them, so it’s somewhat common for a case to get cited even though it has almost nothing to do with the facts or subject at hand.

#16

Meanwhile, I have to laugh when you people equate a scholarship with actually getting paid for a job. There is a reason many employers (I’ve had a couple) pay you AND provide money to further your education. Sure, an education is a valuable thing to have, but you can’t eat tuition, fees and books, or drive it, or wear it to class. More than one college athlete has had to choose between eating and other basic needs because there wasn’t enough money to do both. Fortunately, the Jones Center makes sure our athletes can get their nutritional needs met, but not every school has the resources to do that. Some of our heroes on Saturday had ramen noodles for their pregame meal because that’s all they could afford.

#17

Man, SMH

They ARE GETTING PAID.

I went to college from 08-12 as a 34 year old with a wife and two kids. My tuition was paid for, but I had to pay for my food, my families food, books, house payment, vehicle payment, go to work during the day, school at night (and my job had priority). These guys pay for NOTHING.

You can argue with me all day on this, but they get things given to them for free. They now get a stipend on top of their scholarships because an athlete a few years back did complain about Ramen.

But since you say they aren’t getting paid, let’s do this, give them free tuition, pay them $40,000 a year (that’s more than $15 an hour), then let them pay for books, food, housing, and a car. I bet they’ll cry it’s not enough. By the way the avg for high school graduates without any college is $494 a week. That’s below $40,000 a year.

Oh and let’s not forget. My tuition was paid for as long as a maintained a 2.5 ( same they’re expected to maintain to be eligible) and I didn’t drop a class or I had to pay my TA back.

#18

Ole Miss, Auburn, and Bama would sure be pissed off if we all started paying players.

#19

When it comes to football and basketball, everyone on scholarship is on a full ride that includes a place to live, food to eat, PLUS books, tuition, fees, etc. Car? No (unless you go to Auburn, then that is included as well). Now days with the “full cost of attendance” they get some spending money as well.

Now, all the other sports? Many (all?) are on partial scholarships and ti does not cover all of those things.

By the way, the IRS thinks the part of the scholarship that is for things other than tuition, books and fees is income. We get a 1099 on my son each year for all the rest.

#20