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Excerpted From: Daniel Bartlett, The Seal Has Been Lifted: NCAA and Predominantly White Colleges must Soon Stop Exploiting Their Black Athletes, 11 American University Business Law Review 185 (2022) (235 Footnotes) (Full Document)


DanielBartlettCollegiate athletics is a dominant form of entertainment in the United States, with upwards of ten million average viewers for select tournaments. Sports fans and universities come together on a nightly basis to watch their team perform at student-athletes' expense. Introduced in the 117th Congress's second session, the Amateur Athletes Protection and Compensation Rights Act of 2021 (“AAPCA”), and similar legislation, aim to solve the issue of the lack of compensation for college athletes competing on behalf of their university.

From a business perspective, college athletics is a lucrative industry with high-profit margins for the NCAA and individual universities. While the NCAA and its partner universities offer athletic scholarships to cover the cost of attending a four-year school, athletes are otherwise limited in their ability to capitalize and receive compensation for their athletic success. Nevertheless, popular college athletes' names, images, and likenesses (“NIL”) are used to sell video games, merchandise, and other items, while the athletes receive none of the profit. The NCAA continues to perform legal gymnastics through loopholes and narrow rulings regarding college compensation, harming its athletes, particularly Black athletes.

Black men only make up 2.8% of undergraduate students at the University of North Carolina-Chapel Hill (“UNC”), but sixty-two percent of the school's basketball and football players. Basketball and football athletes financially support entire non-profit producing programs such as track, tennis, golf, and swimming. For example, at Louisiana State University (“LSU”) alone, the 2018-2019 football team earned a profit of $56.6 million. Excluding Men's football, basketball, and baseball, twelve other LSU sports lost over $1 million. That same Men's Football roster was comprised of roughly 68% Black athletes.

It is no secret that Black athletes dominate the high revenue-producing sports of Men's Basketball and Football. To maintain amateur status and thus NCAA eligibility, these athletes cannot ever be directly paid for their efforts. Coaches, universities, and athletic departments consistently receive lucrative, multi-year contracts. Three notable Power Five coaches, Nick Saban of Alabama football, Dabo Swinney of Clemson football, and John Calipari of Kentucky basketball, each make roughly $9 million annually. These contracts can last for up to ten years, and these coaches are some of the highest-paid employees in their respective states. Notably, in an industry dominated by Black male athletes, the head coaches and administrators are overwhelmingly white, with about eighty-two percent of college basketball coaches, ninety-two percent of Football Bowl Subdivision (“FBS”) head coaches, and eighty-six percent of conference commissioners are white. Moreover, For March Madness alone, the NCAA Men's Basketball Championship tournament, Turner Sports and the NCAA entered into a television deal valued at $8.8 billion.

In 1992, Jalen Rose, Chris Webber, Juwan Howard, Jimmy King, and Ray Jackson decided to team up and play for the University of Michigan's basketball program. Referred to as the Fab Five, this is one of the most significant recruiting accomplishments in sports to date. Before the Fab Five's recruitment, Michigan's 1990--1991 season record was 14-15. After assembling the Fab Five, Michigan's record jumped to 25-9 in 1992 and then to 31-5 in 1993 with back-to-back NCAA Finals appearances.

The Fab Five could have gone to any institution and achieved athletic dominance. However, if another Fab Five appeared and attended a Historically Black College or University (“HBCU”) rather than a Predominately White Institution (“PWI”), they could find success on the court as well as through marketing compensation. Under the AAPCA future Black stars can team up at an HBCU and completely change the college sports landscape again.

This Comment argues that passing the AAPCA, Fair Pay to Play Act, and similar legislation will allow college athletes to rightfully profit from their NIL and open the door for star athletes to choose HBCUs over traditional Power Five sports programs. Part II of this Comment will explain the legislative and procedural battles student-athletes have faced when arguing against the NCAA for the right to earn compensation. Traditionally the NCAA has avoided compensating its athletes, and courts have avoided tackling the issue. Part III will analyze previous litigation under the lens of current and pending legislation surrounding these athletes' rights and allowances. Finally, Part IV will recommend a new route for Black student-athletes to take when advocating for the improvement of their rights and the prosperity of the Black community.

[. . .]

In utilizing the AAPCA, and similar legislation, there is a legitimate chance for athletes to receive their long-overdue compensation. The courts and NCAA have failed to protect athletes on a federal level, and we are now only seeing change due to state legislative pressure. The NCAA cannot surrender the Power Five's monetary significance, but sports advocates can encourage a redistribution of Black talent through other economic outlets. The emphasis is on Black star athletes to launch their careers through an HBCU. HBCUs are historic universities that produce a wealth of Black entrepreneurs and scholars. The revenue these star athletes can generate for these institutions will significantly benefit the Black community. It will provide more access to tools, scholarships, and resources to further education for Black people. HBCUs provide a great environment and platform for Black students, who may otherwise not attend or complete college. There lies tremendous potential in bringing money back to the Black community if the up-and-coming athletes are ready and empowered to take the next step.

Note and Comment Editor, American University Business Law Review, Volume 11; J.D. Candidate, American University Washington College of Law, 2022; B.S.B.A Business Administration, Philosophy minor, High Point University, 2019.

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