For the past ten months, the NCAA has allowed college athletes to receive compensation for the use of their name, image, and likeness (NIL) following the Supreme Court’s ruling in NCAA v. Alston. [2] Although it appears college athletes are more empowered than ever due to monetizing their likenesses and engaging in various endorsement opportunities, the NCAA and its member conferences are still receiving large profits from television and licensing deals while the athletes receive nothing.[3] Consequently, the National College Players Association (NCPA), a non-profit advocacy group representing student-athletes, filed a civil rights complaint with the U.S. Department of Education, alleging the 350 NCAA Division I member schools are colluding to limit earnings for Black football players and Black basketball players.[4]
Under current regulations, the NCAA caps scholarships for room, board, books, tuition, cost of attendance, and educational benefits at $6,000.[5] The NCPA claims this cap causes a disparate impact on the high percentage of Black college students who are also student-athletes, specifically those who participate in football at the Football Bowl Subdivision schools and basketball at all Division I schools.[6] Disparate impact occurs when “policies, practices, rules, or other systems that appear to be neutral result in a disproportionate impact on a protected group.”[7] Furthermore, Title VII of the Civil Rights Act of 1964 states:
“[a]n unlawful employment practice based on disparate impact is established…
if a complaining party demonstrates that a responded uses a particular employment
practice that causes a disparate impact on the basis of race . . . and the respondent fails
to demonstrates that the challenged practice job related for the position in question and consistent with business necessity.”[8]
To establish this impact, the NCPA specifically breaks down in its nine-page complaint how much of a sport’s total revenue is allocated towards athletic scholarships.[9] For football, 8.1% of revenue is spent on athletic scholarships compared to 8.9 % for men’s basketball, and 29.9% for women’s basketball.”[10] Accordingly, “women’s basketball players are each being denied an average of $24,000 a year; men’s basketball players $164,000 annually; and football players $185,000.”[11] Additionally, the complaint claims the compensation limits create “an abuse of Pell Grant Funds because this money-which the federal government awards to low-income students based on need-would not have to be provided to football and basketball players if they were compensated fairly.”[12] Due to this evidence, the NCPA concludes that compensation limits produce a “disparate impact” on the high percentage of Black student-athletes in these sports who are a “legally protected class,” thus violating their civil rights under Title VII.[13]
The NCPA believes its conclusion is bolstered by Justice Kavanagh’s concurring opinion in Alston, which stated in part, “the NCAA and its member colleges are suppressing the pay of student athletes who collectively generate billions of dollars in revenues . . . [b]ut the student athletes who generate the revenues, many of whom are African American and from lower-income backgrounds, end up with little or nothing.”[14] The NCPA’s executive director, Ramogi Huma, highlighted similar discrepancies and concerns with the NCAA in a statement to Sports Illustrated:
"This multibillion college sports enterprise imposes discriminatory practices that disproportionately harms Black athletes, while predominantly White coaches and
administrators make millions of dollars. College athletes throughout predominantly
White sports receive fair market compensation, but athletes in the only predominantly
Black sports (FBS football and men's and women's basketball) do not. All college
athletes should have the opportunity to receive fair market pay. This can happen
without cutting any sports. Colleges would just have to spend a bit less on coaches'
salaries and luxury facilities."[15]
This complaint is merely the latest segment in the athletes’ rights movement that has produced sweeping changes to “archaic NCAA policies governing athlete compensation.”[16] A month prior to this civil rights complaint, the NCPA filed unfair labor practice charges with the National Labor Relations Board against the NCAA, PAC-12 Conferences, USC, and UCLA.[17] These charges were part of the first step in the NCPA’s “#JforJustice” advocacy campaign which aims to pursue fair compensation, improve Title IX compliance, and enforce health and safety standards.[18] A larger goal of this campaign is to affirm employee status for FBS football players and Division I basketball players.[19] Executive Director Huma further explained, “[b]y definition, college athletes are employees under labor law . . . [t]hey are skilled workers in their sport and are paid scholarships. They deserve the rights afforded to them under labor laws like every other American.”[20]
Ultimately, in its civil rights complaint, the NCPA is asking the Department of Education to put a stop to the NCAA’s compensation rules that it claims violate civil rights and abuse Pell Grant Funds because the Department has “authority and jurisdiction and power and legal authority to address these violations.”[21] The NCPA wants to push federal agencies possessing the authority to loosen the NCAA’s regulations and end unfair treatment toward student-athletes. However, the final words on athlete-compensation and employment-status are in the hands of the courts, and it could be many months before a decision is rendered.
References:
[2] Steve Berkowitz and Eric Smith, College-Athlete Group Files Civil Rights Complaint with Education Department over NCAA Pay Rules. USA Today (22 March, 2022).https://www.usatoday.com/story/sports/2022/03/22/college-athlete-group-files-civil-rights-complaint-over-ncaa-pay-rules/7128543001/
[3] Curtis Bunn, Black College Athletes’ Civil Rights are being Violated, Advocacy Group Alleges. NBC News (23 March, 2022). https://www.nbcnews.com/news/nbcblk/black-college-athletes-civil-rights-are-violated-advocacy-group-allege-rcna21178
[4] Harry Lyles Jr., National College Players Association Files Civil Rights Complaint with Department of Education Against Division I Schools. ESPN (22 March, 2022).
[5] Bunn, supra
[6] Id.
[7] Disparate Impact Definition, https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/disparateimpactdisparatetreatment.aspx
[8] Title VII of the Civil Rights Act of 1964, https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964
[9] Ross Dellenger, NCPA Files Civil Rights Complaint in Next Pay-toPlay Step. Sports Illustrated (22 March, 2022). https://www.si.com/college/2022/03/22/ncpa-files-suit-in-next-pay-for-play-step
[10] Id.
[11] Id.
[12] Berkowitz and Smith, supra.
[13] Id.
[14] Lyles, supra.
[15] Tyler Conway, NCPA Files Civil Rights Complaint with Dept. Of Education Against Division I Schools. Bleacher Report (22 March, 2022) https://bleacherreport.com/articles/10030546-ncpa-files-civil-rights-complaint-with-dept-of-education-against-division-1-schools
[16] Dellenger, supra.
[17] Id.
[18] Lyles, supra.
[19] Dellenger, supra.
[20] Ross Dellenger, NCPA Takes Next Step Toward College Athletes Being Classified As Employees. Sports Illustrated (8 February, 2022) https://www.si.com/college/2022/02/08/ncaa-student-athletes-vs-employees-debate-big-step
[21] Dennis Dodd, Black College Athletes Allege in Filed Complaint NCAA is Violating Civil Rights by Capping Compensation. CBS Sports (22 March, 2022). https://www.cbssports.com/college-football/news/black-college-athletes-allege-in-filed-complaint-ncaa-is-violating-civil-rights-by-capping-compensation/