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NCAA Cites 13th Amendment on Unpaid Prison Labor to Not Pay Athletes

The NCAA says it doesn't have to pay athletes. It's legal briefing cited a 13th amendment phrase on unpaid prison labor.

Are student-athletes prisoners? According to the NCAA they are. The Intercept picks up the story on an unusual use for a 13th amendment clause on unpaid prison labor.

College sports is a business – a very lucrative business. In 2015, the top [college athletic] programs made a combined $9.1 billion. The NCAA, for its part, just signed an $8.8 billion dollar deal with CBS to air March Madness, the college basketball championship tournament.

That very obvious dynamic undergirds a lawsuit filed by former NCAA athlete Lawrence “Poppy” Livers asserting that scholarship students who play sports are employees and deserve pay. The Livers case argues that student-athletes who get scholarships should at least be paid as work-study students for the time they put in.

At the root of its legal argument, the NCAA is relying on one particular case for why NCAA athletes should not be paid. That case is Vanskike v. Peters.

The use of the case stems from several other law cases alleging unpaid labor; two of them are previous lawsuits against the NCAA in which the case was cited as precedent, and the NCAA won.

IN THEIR RESPONSE to the NCAA’s motion to dismiss, Livers’s lawyers are arguing that the precedent was mistaken for applying the 13th Amendment exception for unpaid prison labor in a case dealing with non-prisoners.

“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,” Livers’s rebuttal to the NCAA’s motion says. “Comparing athletes to prisoners is contemptible.”

13th Amendment Clause

The 13th Amendment abolished slavery and involuntary servitude except as punishment for a crime.

Vanskike, a prisoner, lost his case because of this wording: “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.”

Let's return to the question: Are student-athletes prisoners?

Apparently so. The NCAA won two other rulings in which it cited Vanskike v. Peters.

So, not only are the athletes prisoners, those not on full scholarship are also probable debt slaves.

Perhaps the NCAA should have argued that the athletes are paid, and the payment is their scholarship. However, such an argument might result in bidding wars, something the NCAA desperately wants to avoid.

Mike "Mish" Shedlock

Those who know nothing or very little about this system shouldn't be commenting on it. Reminds me of all those people commenting on the "hot coffee at McDonald's" case without actually reading the damn thing.

First of all, there are only a few sports at the D1 level where a school is allowed to give "full-ride/all-expenses-paid" athletic scholarships: Men's football, men's basketball, women's basketball, and women's volleyball. All other sports get a small number of scholarships that a coach must split between the number of players they wish to provide money. D2 schools are allowed half (or less than half) the number of scholarships and with the same number of players, they have to split the money among them. D3 schools don't give athletic scholarships at all - they do academic/merit grants instead.

And while the common perception is that players get guaranteed "four year" deals, that's not true either. All scholarships (even those purported to be guaranteed multi-year) are awarded on a year-to-year basis and are at the discretion of the coach and the university. They can be withdrawn at any time leaving a student athlete marooned if they have no other means of paying. Often this is the fault of the athlete for doing something wrong, but I have personally seen it done to more than one athlete who had done nothing wrong. The coach simply found someone who was a younger/better player at the position, or of equal skill, but willing to take a partial scholarship allowing the coach to move some money to someone else.

Furthermore, the NCAA makes it nearly impossible for student athletes to work. They are only permitted to work during the academic year and they and their work are to be monitored closely by the university's athletic department. An athletic department - for reasons that should be obvious - wants their athletes devoted to their sport and practicing as much as the NCAA compliance office will allow (more in reality through tricks used due to loopholes), and they don't want to devote a ton of their man-hours to monitoring a student-athlete and their employer. And because it is an area where there is so much room for fudging and violations that may later come back to haunt them and their respective university, they are reluctant to encourage the practice. They don't specifically "forbid" their athletes to work, but it isn't encouraged.

All of these rules (and more) are put in place by an NCAA trying to make themselves look like they are doing something about corruption. The reality is that less than one tenth of one percent of student athletes are superstars who could expect boosters to line their pockets or give them cars or whatever - and they still get theirs, despite all the rules. The ones who are hurt are the "good" athletes trying to get a degree and be successful in life outside of their sport, scraping by due to rules put in place to protect the image of the member schools and the NCAA.

Should they be paid? I don't know. But I do know that a scholarship athlete signs a contract basically giving control over 90% of their life. They eat when they are told, sleep when they are told, they give labor through practice and play when they are told, they go to class when they are told, they go to university functions and publicity events when told, and they allow full use of their name and image in advertising and promotional materials - all sold by the university.

They are prima facie employees. And the NCAA should just admit it.

The players do have other options for pay. After their freshman year or when they turn 19, they can join the NBA. There are many professional leagues scattered around the world too.

One problem with athletic departments is title IX. Every sport offered for men has to have a corresponding offer for women. I think there's an exception for football. So if a team wants to field a basketball team with say 10 full time scholarships, they have to do the same for a women's team. Makes it hard to have a profitable athletic department when no one wants to watch the women.

@KidHorn

Another stupid rule: The LeBron Rule... Why in the world would you want to stop a guy who, upon leaving high school, can immediately go into the NBA and earn an incredible living? Why would you tell him that he has to either go to college, or sit out until he's 19?

And the football rule is even worse: Three years out of high school if you went to college at all. If you choose not to go to college, you have to wait FOUR years after you graduate high school before you can be eligible to play in the NFL. So you either play in college, or you don't play but go to college for three years or you bypass both playing and college and wait four years. Who is going to draft you then? No one. So your only real shot at that pro contract is to play in college until three years after you graduate high school.

I doubt you will ever see anything like this in baseball however - it isn't a huge draw for most universities and the MLB has an extensive farm system that has been in use for nearly a hundred years - and they've always recruited young players. In fact, many organizations would prefer players who are raw and didn't go to college where they might get messed up by a coach who doesn't know what they're doing.

The only reason that the basketball and football rules exist is to keep great players from bypassing the NCAA and to keep their schools from losing the income that those players represent. Why? Because they depend on that income in a big way.

Trust me - the athletic departments of major D1 universities do just fine. If you doubt that, take a drive to the nearest one and check out the buildings they occupy on campus, the cars in the parking lots around those buildings, and the houses the administrators occupy.

DGB, I agree with much of what you have written, until your conclusion. In particular I agree with the statement that less than .1% are superstars. Yet, the current system "pays" just as much to the scholarship athlete on the bench as it does to the superstar. It is, in essence, a socialist system in that regards. It's a system that take from the strong (making the stars play for nothing more than a scholarship and food, plus a few extras, and gives to the weak (giving the players who don't work out identical benefits). In a free market, the superstars would get more, and the backups would get less.
Where we differ is here: what does sports have to do with the core missions of colleges? Nothing. The original idea dates back to ancient Greece, that a sound mind benefits from a sound body, but the fact is that today sports aren't for the majority of students, they are for a special minority. I, therefore, see no harm with breaking the current system, and ending it, and then allowing something better and more efficient to replace it. Therefore I favor requiring the Athletes to be paid. I don't, however, favor loading the burden onto the other students. I favor a new rule prohibiting Universities from levying fees on students to support activities such as sports that don't benefit them. Take away the fee revenue, and the athletic departments all but perhaps ten Universities would already be bankrupt. Add in the extra cost of having to pay the athletes, and that will break the other ten as well. Then we can see something entirely different.

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