Melissa Harris-Perry: I'm Melissa Harris-Perry in this week for Tanzina Vega. Good to have you with us.
Speaker: Old time, big 10 football. Touch down, Purdue.
Speaker: He said I got to grab it. And he threw out one of the quickest guys in college baseball, gets the piles on the board. That's the first goal UMass has allowed in the NCAA tournament this year.
Melissa Harris-Perry: College athletics is characterized by many inequalities that are well just, yuck. Number one, in many of the nation's poorest states, the highest paid public official is the college football coach. South Carolina, Kentucky, and Alabama have some of the highest poverty rates in the nation. They each have a state University football coach who earned $9 million in 2020. Two the equipment, resources and opportunities that colleges supply for their women athletes are routinely inferior to what they supply for men. Finally, number three, the NCAA makes more than 1 billion a year from the labor of college athletes, but those athletes can not so much as accept gas money from a teen booster without fear of committing a career ending violation.
On Monday, the Supreme court handed down a decision which chips away at this last year, eww. The Supreme Court unanimously ruled in NCAA versus Alston, that the NCAA was violating federal antitrust laws by restricting the education-related benefits that universities and colleges could provide to athletes. As for the NCAAs claim that limiting compensation was necessary to preserve amateurism in collegiate sports.
In his concurring opinion, justice, Brett Kavanaugh said, "Get that on out of here." When he wrote quote, "Traditions alone cannot justify the NCAAs decision to build a massive money raising enterprise on the backs of student athletes who are not fairly compensated. Nowhere else in America, can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate."
Justice Kavanaugh's argument is reminiscent of a similar conclusion made by historian Taylor Branch and his now classic 2011 piece, The Shame of College Sports. Branch wrote "In the era when our college sports first rose, colonial powers were turning the whole world upside down to define their own interests as all inclusive, and benevolent. Just so the NCAA calls it heinous exploitation to pay college athletes a fair portion of what they earn."
Let me just note this for the NCAA. When your actions can be denounced with equal disdain, by a justice who is using free market ideals and by a civil rights historian who is drawing on post-colonial discourse, that's strong evidence that you are indeed, eww. Here to help us figure out what all this means for the future of college sports is Amira Rose Davis, Assistant Professor of history and African-American Studies at Penn state. She's also co-host of Burn It All Down. Amira, welcome back to the takeaway.
Amira Rose Davis: Happy to be here.
Melissa Harris-Perry: Also joining me is Adam Liptak, who covers the United States Supreme court for the New York Times. Adam, welcome to The Takeaway.
Adam Liptak: Good to be here Melissa.
Melissa Harris-Perry: Adam, can you walk us through the Supreme court ruling a bit earlier this week and tell us where this came from and what is relevant about this decision?
Adam Liptak: This is an antitrust case, and if you think about it, it's a classic anti-trust case because the NCAA, has a monopoly over the labor of college athletes. It uses that monopoly power, to pay them essentially nothing. A bunch of athletes challenged that in a class action and a judge in California said, that's right. I'm going to issue a narrow ruling that at least as to education related benefits, musical instruments, scientific instruments, summer study abroad, graduate tuition, things that are tied and tethered to education. The NCAA cannot tell it's member colleges and universities that they can't compete for athletes labor on that ground and the Supreme Court upheld that now.
That's fairly narrow. The payments we're talking about are education related. The logic of the decision and especially a concurring opinion from justice, Brett Kavanaugh really suggest that the door is open to further challenges that might allow actual direct salary like payments to these college athletes. Some of whom are huge stars, and yet they get nothing from, as you noted the billions that these sports programs make.
Melissa Harris-Perry: Indeed, Kavanaugh was pretty explicit that he understood this as a decision meant to eventually top all the way the NCAA constrained what players can earn. Which as you've pointed out is essentially nothing at this point for their college athletics.
Adam Liptak: He comes out swinging, Brett Kavanaugh is a huge sports fan, huge sports fan, and he has thought about this deeply, cares about it deeply. He just doesn't understand why this business, unlike other businesses. He said, what if all the restaurants got together and said, we're not going to pay our workers because they should do it for the love of food, or what if all law firms got together and said, we're not going to pay law firm associates because they should do the work for the love of the law. This same thinking he says, takes place when the NCAA says, well, amateurism is such a great value that it should allow us not to pay the players. He was having none of it.
Melissa Harris-Perry: Although just at this moment, it occurs to me, there's probably some waitresses. I do think maybe the 215, tip minimum feels like nothing, but we'll do that on another segment. Amira, let's talk a little bit about how athletes themselves are experiencing this decision. I was just looking at the NCAA website and seeing that the NCAA defines itself as a member led organization dedicated to the wellbeing and lifelong success of college athletes. Not to mock that, but I'm wondering if college athletes feel that way about NCAA.
Amira Rose Davis: No, we can mock that. When they say they're a member led institution and they're looking out for people, what they're looking out for is the universities and the college presidents and athletic departments, not the athletes. They're going to use the rhetoric of care and protection to over-regulate, to over-restrict. One of the things that this is addressing, is those restrictions that are tighter on college athletes than many other students. The athletes themselves first of all, the evidence is in the fact that they brought this case. I think it's important to remember that back in 2014, you have both representation with Austin from football, but you also have Justin Hartman, who was a center at Berkeley who represents a division one basketball, both men's and women's basketball. You have a lot of energy behind these cases.
Then you also have professional players, associations of the NBA, the NFL, the WNBA who also have been applauding this the whole way through. Isn't surprising to me that a lot of athletes are seeing this as a net positive, are seeing this as another thing that's chipping away at this situations, system, as we know it, that they feel is deeply exploitative, and with good reason. I think that this feels like a breath.
It's not the whole thing, it's not a full exhale because the NCAA, if nothing else, knows how to reassert itself, knows how to maintain power, and knows how to drag its feet, to try to figure out how to do that. I think that this is a huge indication, that going forward amateurism is up for debate and that people are not really abiding by these romantic arguments that try to use that as a shield, for exploitative labor conditions.
Melissa Harris-Perry: Dig in a little bit, for when I say college athletes, I think so many of us immediately go to football, basketball, maybe lacrosse and baseball. If we've got a expansive notion, but is this going to make any difference, for example, for women's basketball players, or field hockey players, for gymnast or for the crew team. Where will this matter, or is this really just a football, basketball question?
Amira Rose Davis: I think this is a really important thing to parse out. I said, women's basketball is including in this, they are not disaggregated from the collective, a division one basketball players who brought this. I think that we get into this situation where we want to say, oh, the Olympic sports or the non-revenue sports, we usually use women's sports or title nine as the distraction within that. You've seen from college athletes themselves saying no, actually, whether we're talking about educational benefits, or of course name, image, and likeness, which is moving, it's a process going on as well. We stand to benefit from this as well.
Those same over restrictions that happen on college football players, happen on other college athletes. I think that we gravitate to that, of course, because of the massive disparity in revenue and really football is its own behemoth. We put basketball in there because of March Madness, but football, I think they're generating way, way, way more multiple millions of dollars more than basketball, so they're really in their own category. Then from there, the same over restrictions especially on ed benefits in terms of student athletes who are not able to take paid internships, who might need food, who might need a laptop. These restrictions affect swimmers who might come from impoverished backgrounds and need that as well. I think that the more you get the NCAA off of their backs and off of regulations, the better it is for everyone.
Melissa Harris-Perry: Adam, I want to come to you a second on this. Because I was so happy to hear you say that what's going on with Kavanaugh in part here, is that this is something he's thought about for a long time as someone who cares a lot about sport. Because I have to say, I have been just a little bit surprised that we've seen as many unanimous decisions from the court as we have this time. I'm wondering, should I not be surprised? Did I just get sucked in by the cable news anxiety of it all, but at some point, I thought, "Oh no, we're never going to have another unanimous court decision because the justices are so divided."
Adam Liptak: People misunderstand that, and partly the press, by which I mean me, is to blame. We do focus on the big 5-4, 6-3 decisions that come out at the end of the term. For much of the term, the court does try to find consensus. It's unanimous 30% of the time. This case doesn't really have a political tilt. Whether you look at it as a matter of fundamental fairness, or whether you look at it as a matter of antitrust law, the justices did not have a hard time at all finding that this is intolerable. I don't want to undersell the idea that the court is and will be closely divided on politically controversial cases, but I just didn't think this was one of them. Just to repeat myself, 9-0 decisions are not that unusual. About a third of the court's decisions are 9-0. but they tend to be in less significant cases than this one.
Melissa Harris-Perry: Amira, I want to go back to that Taylor Branch piece from a decade ago for a moment. He wrote in it, "Slavery analogy should be used carefully. College athletes are not slaves. Yet to survey the scene, corporations and universities enriching themselves on the back of uncompensated young men. Whose status as student athletes deprive them of the right to due process guaranteed by the constitution is to catch an unmistakable whiff of the plantation." I'm wondering the ways in which race may be playing into both the resistance to compensating athletes, and also to athletes' own understanding of their experience in college athletics?
Amira Rose Davis: Yes, absolutely. I think it would be quite, frankly, irresponsible to ignore race and the way it's working here. Taylor Branch, I think, quite convincingly argues that one of the reasons it's so hard to move the needle on this, is that people just aren't really caring about the exploitation of Black athletes. This prevailing idea that they're there to entertain. They don't really have labor rights, why are they complaining? They should be grateful to be in college in the first place. Is so prevalent that it has been very hard until really recently to drum up a widespread public support, let alone legal support at that.
I think that you see this play out in a number of ways here on my campus, Penn State. Of course, demographically, Black students make up a very small amount of the student body, but certainly over-represented on the football team. So what does it look like to have that team be the cash cow for the athletic department, but also what we've seen in this last year especially. I think the pandemic has really laid a lot of this bare in ways that we can absolutely not deny. When you're sending students home but keeping the football team. When Oklahoma State Coach Mike Gundy is saying, "These kids are going to be all right if they get COVID but they need to start playing again to run money through the state."
When those things are happening and you're seeing that disparity in terms of who is being asked to risk their health to play, especially at schools in the Big 10. Where the rest of the student body, the rest of the athletic department even, is not Black, it's really undeniable. I think that leads into a perception that athletes, I know at least the college athletes I talk to and work with, have of themselves. That they receive messages that they are only there to play football, that their education is being shortchanged, that the assumption is that that's what they're there for. Black students who are not athletes have that same perception on them.
Even non-athletes are being asked, "What sport do you play?" The presumption being the only reason you're at this predominantly white school in the middle of Pennsylvania is that you're contributing if you're playing a sport and you're making money for the university. I think that's the burden to carry that they articulate and talk about a lot.
Melissa Harris-Perry: Adam, Professor Davis brings us to this point that, for example, state universities, in particular, are not only member institutions of the NCAA. They're also institutions of the state themselves. We know that some states are taking action to circumvent the NCAA's ability to limit how athletes are earning money, or getting these educational contributions. I'm wondering if the state having those decisions is really any better for the student-athletes than the NCAA?
Adam Liptak: You raise an important point. There are colleges that are private institutions which should have more leeway, but if the state is in essence discriminating, that is a constitutional violation. There's also a separate kind of state action being taken in state legislature, six or seven of them, that circumvent the NCAA's power by giving rights directly to student-athletes to exploit their names, images, and likenesses to allow them to make money off of their fame. Some of these athletes are celebrities. Those laws will allow potentially large amounts of money to flow to student-athletes and there's nothing the NCAA could do about that.
Melissa Harris-Perry: Amira, let me ask this. Given what we know about, especially for some athletes, football is a really great example and there's parts of the year, I think, where this is also true for both men's and women's basketball teams. We know that that student athlete label may not be quite right. The expectation is putting first the team. Should colleges be hosting athletics at this level? Full stop. Young people who want to do this kind of athletics, should they be just able to do it and then maybe get a GI Bill level college scholarship they could then use later. Is the expectation of both being a student and being an athlete at a professional level reasonable?
Amira Rose Davis: Yes. Not as it currently stands. Student athlete, that's a term that was legally used to just try to prevent worker's compensation claims. The entire system that we have now really is not only being challenged left and right and all over the place, but it's outdated. It hasn't accounted for the massive boom in the amount of revenue that's coming in. One of my favorite arguments the NCAA tried to make is like, "This will be contribute to an arm's race." As if football programs are not already building spazz to pad their budgets. I definitely think that there's an opportunity here to actually invite us, to actually rethink the college structure in general.
The NCAA has been very reluctant to do that. As you mentioned, there are six states that are about to pass name, image, and likeness, laws that are going to go in effect July 1. The NCAA has had time to evolve and try to do anything with this, and they just are so determined to cling to the remnants of a system that has benefited them so much. I do think that that question is a hard one but it's one to wrestle with. If this is the farm system for professional leagues, if this has been the only option. We've seen certain people step outside of that and challenge this kind of pipeline, but what does it look like to actually rethink the purpose of college athletics.
For some people, it really works and I don't discount that at all. I have many college athletes who say this worked for me in terms of my education. I taught a 9:00 AM class that was 85% college athletes. All of them coming in from morning list and they were exhausted. That is not prioritizing education which is why the arguments that the NCAA make about them getting this education as compensation feels so ridiculous, and everybody knows it.
Melissa Harris-Perry: Because I teach at 3:00, I never get college athletes. Adam Liptak covers the United States Supreme Court for the New York Times and Amira Rose Davis is an Assistant Professor of History and African-American studies at Penn State. She also co-host of the Burn It All Down podcast. Thank you both.
Amira Rose Davis: Thank you.
Adam Liptak: Thank you.
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