EEOC Could Spell Trouble for NCAA in Athlete-Rights Complaint
Today’s guest columnist is Michael H. LeRoy.
The National College Players Association (NCPA) recently filed a discrimination complaint with the U.S. Department of Education against NCAA schools.
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NCPA alleged that the NCAA’s uniform cap on athlete compensation discriminates against “Black students on the basis of race in the context of employment.” The education department said it “has only limited jurisdiction over allegations of employment discrimination under Title VII,” and referred the complaint to the EEOC’s San Francisco office. However, it assured NCPA that “an EEOC representative will contact you about the complaint.”
NCPA alleges that the NCAA’s cap on scholarships and other educational assistance means that women basketball players are paid 29.9% of the revenue they generate while men’s basketball players are paid only 8.9% of the revenue they generate. Football players get even less, about 8.1%.
This shouldn’t surprise any observer of NCAA sports: Football and men’s basketball pay for nonrevenue sports.
But the point of NCPA’s complaint is that black athletes are paid unequally relative to their financial contribution, and that NCAA rules have a pronounced racial bias in compensation. The disparity is not intentional but could create legal liability under Title VII’s disparate impact doctrine, which says employers who have a racially neutral practice with a significant disparate impact must have a business justification to avoid potential liability.
The NCPA argues that the NCAA’s uniform compensation cap transfers compensation away from black football and basketball players—the athletes who drive the financial engine for the association and its member schools.
A recent economics study painted this picture more clearly, stating that “60% if all black athletes in Power Five schools take part in revenue sports. By contrast, only 14% of white athletes participate in revenue sports while the remainder take part in nonrevenue sports.”
Would an EEOC investigation change the big picture for the NCAA’s insistence on treating athletes as amateurs?
On the one hand, this might be nothing more than a nuisance for the NCAA.
Recall that Kain Colter and other Northwestern football players tried to form a union. Although they participated in an NLRB election, the five-member National Labor Relations Board ruled that the agency lacked jurisdiction because the athletes were not employees. Similarly, the EEOC could rule that it lacks jurisdiction because it enforces employment discrimination laws—not rules for a voluntary association of 1,100 universities and colleges.
On the other hand, much has changed since the NLRB ruled against Northwestern football players in August 2015.
For starters, consider how college administrators and coaches talk about pay-for-play. Big Ten commissioner Kevin Warren said he’s open to conversations about how schools could share revenue directly with athletes, declaring, “Those are the things that we have to resolve.”
Earlier this year, Alabama coach Nick Saban said, “The Alston money, we pay our players that. We paid them last semester, we’re paying them this semester.”
Notre Dame athletic director Jack Swarbrick recently predicted, “Sometime in this school year, somewhere in the legal world, or administrative level, a student-athlete will be declared an employee.”
Warren, Saban and Swarbrick are three of the most influential voices in college sports. If leaders among the elite of NCAA athletics make public concessions that they “pay” athletes, or are open to revenue sharing, or realistically foresee employment for their athletes, why should the EEOC see college athletics differently? NCPA’s complaint is framed as gross pay disparity rooted in employment.
The complaint could be more easily dismissed if Supreme Court Justice Brett Kavanaugh didn’t write a blistering concurring opinion in Alston v. NCAA, stating, “Price-fixing labor is price-fixing labor.” He expounded: “The NCAA couches its arguments for not paying student athletes in innocuous labels. But the labels cannot disguise the reality: The NCAA’s business model would be flatly illegal in almost any other industry in America.”
Adding intrigue to the forecast of the EEOC referral, the Biden Administration’s Department of Education could have just declined to investigate.
However, this department took it upon itself to walk NCPA’s complaint over to the EEOC—and to that agency’s San Francisco office. That puts the case on a potential path to wind up in Judge Claudia Wilken’s district court.
To date, she has been the most transformational authority in expanding pay for college athletes. She heard O’Bannon v. NCAA, the case that ruled that the NCAA’s NIL rules violated the Sherman Antitrust Act. She also heard Alston, an antitrust case that eventually put a major dent in the college sports amateur model.
California state Sen. Nancy Skinner turbocharged Judge Wilken’s O’Bannon decision by sponsoring state legislation for the nation’s first NIL law. Just several miles from Judge Wilken’s courthouse, Sen. Skinner is still in office.
In sum, the Biden administration seems to be teeing up an investigatory type of forum shopping, and a parallel legislative initiative.
Does EEOC spell trouble for the NCAA?
Probably yes, though the fog that often blankets San Francisco looms over NCPA’s referred complaint.
This much is clear: If the EEOC follows its usual course and asks the respondent (here, the NCAA and 350 D-I schools) to provide compensation data in response to the complaint, lawyers for college athletes will get a better handle on pay practices that could take them years to unearth in a pay discrimination lawsuit.
And if the NCAA initiates a lawsuit to dismiss the first stage of investigation, it could set the stage for Judge Wilken and Sen. Skinner to push NCAA schools to places they don’t want to go—perhaps a costly pay-discrimination lawsuit and possibly pay-equity legislation for college athletes.
Michael H. LeRoy, a professor at the University of Illinois, has published multiple law review articles on college sports, as well as the book, Collective Bargaining in Sports & Entertainment: Professional Skills and Business Strategies.
