Rev. Al Sharpton and the NFL Players Association Denounce NCAA Comparison of College Athletes to Prison Labor

In the wake of the Supreme Court’s unanimous rebuke of “amateurism” in NCAA v. Alston, 141 S. Ct. 2141 (2021), the Third Circuit is set to weigh in on the hourly employee status of NCAA college athletes in Johnson v. NCAA.

NCAA sports are big business, generating several billion dollars in annual revenue from media rights fees, corporate sponsorships, television advertisements, ticket sales, and merchandising.

Student ticket-takers, student seating attendants and student food concession workers at NCAA games are paid hourly. College athletes, however, are a different story.

The New York Times reported, in its coverage of Johnson v. NCAA, that the NCAA opposes paying hourly wages to college-athletes by “comparing college athletes to prisoners” under the legal precedent Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992).

Vanskike v. Peters is the seminal case establishing that prisoners are exempt from the Fair Labor Standards Act and that act’s minimum wage requirements. As the court explained in that case, “inmate labor belongs to the institution” because “the 13th Amendment’s specific exclusion of prisoner labor supports the idea that a prisoner performing required work for the prison is actually engaged in involuntary servitude, not employment.”

The 13th Amendment abolished slavery and involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.”

Last Congress, more than 200 members in the House and Senate co-sponsored a bipartisan Abolition Amendment to strike this “slavery exception” from the Constitution. The bipartisan Abolition Amendment will be reintroduced in June 2023 in both chambers of Congress.

The NCAA argues that “amateurism” should be given the same deference and legal effect as the 13th Amendment “slavery exception.”

The New York Times reported on the reception that this NCAA argument got in a Third Circuit hearing:

“Ridiculous,” [Senior Circuit Court Judge Theodore] McKee chimed in when the Vanskike case was mentioned …. It was unclear whether McKee was dismissive of the legal grounds or offended by the comparison of college athletes to prisoners, or perhaps both.

Let us be clear: Comparing college athletes to unpaid prison labor is not a legitimate or moral position.

The NCAA’s comparison trivializes the historical significance of the 13th Amendment. It implies that college athlete labor belongs to the NCAA and its member schools in a manner repugnant to all college athletes, particularly to African-American descendants of slaves.

When the U.S. Soccer Federation opposed equal pay with the sexist argument that the Women’s National Team does not work as hard as the Men’s National Team, there were repercussions for those responsible and aware.

Ultimately, the U.S. Soccer Federation did the right thing and now pays the Women’s National Team on terms equal to the Men’s National Team.

Similarly, the NCAA and its member schools should do the right thing and pay college athletes on an hourly basis, just as is the case for fellow students who work in campus offices, dining halls, libraries and as support staff at NCAA games.