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NCAA’s SCORE Act comes with constitutional and moral traps | Opinion
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- NCAA’s SCORE Act comes with constitutional and moral traps | Opinion
Paul McDonald is co-counsel for the college-athlete plaintiffs in Johnson v. NCAA , which seeks to have college athletes classified as employees under the Fair Labor Standards Act.
In the aftermath of the recent White House roundtable on "saving college sports," Congress is set to reconsider NCAA-backed legislation: the Student Compensation and Opportunity through Rights and Endorsements (SCORE) Act.
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If you watched college football last season, you saw a lot of TV ads asking fans to call Congress to support the SCORE Act.
Those TV ads will likely make a comeback as March Madness rolls to Final Fours and into the broadcast transition to full baseball and softball schedules.
The TV ads don't disclose NCAA sports are flourishing. In August, The Economist described the NCAA as "a $19 billion industry," noting annual haul ranks the NCAA as the second-highest revenue sports league in the world. More than the NBA, Major League Baseball, and the English Premier League. Behind only the NFL. There's more than enough money to spread around to support HBCUs, smaller colleges, and Olympic and "non-revenue" sports. There's not a money problem. There's a spending problem on excessive salaries for coaches (and buyouts for fired coaches ) and on extravagant amenities and facilities.
The TV ads don't disclose that the SCORE Act includes an antitrust exemption that no other American industry has and permits the NCAA to act like a cartel. In blistering terms, the Supreme Court unanimously rejected the NCAA plea to grant such an exemption in NCAA v. Alston . So, the NCAA has spent millions lobbying Congress for special treatment. If the SCORE Act passes, expect Big Tech, Big Oil, and Big Pharma to ask Congress for antitrust exemptions.
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The TV ads don't disclose that the SCORE Act includes a provision that singles out college athletes to be denied the same student employee status as classmates performing menial tasks in campus offices, dining halls, libraries and bookstores in Work Study-style programs (including such classmates on academic scholarships).
Worse, the NCAA has intentionally misled Congress about employee status, repeating a lie that an employee exemption is needed "to keep them [college athletes] students" to obscure the comparison to students employed in Work Study-style programs.
Student employment is not professional; in fact, student employment is exempt from FICA taxes.
It's clear college athletes meet student employee criteria more than classmates in Work Study-style programs. Not only are college athletes essential to a $19 billion industry, and subject to more control of their daily lives by that industry, but they are also the only students on campus compelled to schedule classes (and academic majors) around required participation in non-academic activities (practices and training).
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In more than 50 years, colleges have never complained that Work Study-style programs are too costly (pay is on an hourly, minimum wage scale) or too complicated to manage. College athletes could easily be folded into such existing programs using timesheets already mandated by NCAA rules (see NCAA Division I Bylaw 17.1.7.3.4).
NCAA lies about employee status have set constitutional and moral traps for Congress.
The Constitutional Trap: Equal Protection prohibits an employee exemption that singles out college athletes to be denied the same student employee status as classmates selling popcorn at NCAA games. Similarly situated students must be treated the same in legislation. Here, college athletes meet student employee criteria more, so such an employee exemption would easily be struck down in federal court.
The Moral Trap: In pending litigation, the NCAA has opposed equal treatment to student employees selling popcorn at NCAA games by instead comparing college athletes to prison labor under the 13th Amendment "slavery exception."
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This is not hyperbole.
The NCAA urged the U.S. Court of Appeals for the Third Circuit to apply the precedent of Vanskike v. Peters , 974 F.2d 806 (7th Cir. 1992) to college athletes.
Vanskike v. Peters is the seminal case establishing that prisoners are exempt from the Fair Labor Standards Act. 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."
This is the "slavery exception" discussed in Ava DuVernay's award-winning Netflix documentary "13th."
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The Third Circuit strongly rebuked the NCAA for this deeply offensive comparison:
"We disagree with [the] comparison of college athletes to prisoners and refuse to equate a prisoner's involuntary servitude, as authorized by the 13th Amendment, to "the long-standing tradition" of amateurism in college athletics." Johnson v. NCAA , 108 F.4th 163, 182 (3d Cir. 2024).
The truth of the NCAA's opposition to student employee status is stranger than the fiction of South Park's plantation satire "Stu-dent ATH-O-LEETS."
Rather than entertain an employee exemption premised on the 13th Amendment "slavery exception" and prohibited by Equal Protection, Congress should call these flagrant fouls on the NCAA and disqualify the SCORE Act.
This article originally appeared on USA TODAY: NCAA SCORE Act filled with constitutional, more traps for college athletes
