The Boiling Point: On the use of the 13th Amendment, and how the NCAA embroiled itself in slave labor rhetoric

How does prison labor tie into college athletes’ rights to be paid? 

Writing this column, I’m still wrapping my mind around it. I picture a team of lawyers huddled in a courtroom rummaging through hundreds of precedents the NCAA has already set — and somehow, these suits pull out a prison labor case as the key for dismissing another student-athlete suit for fair compensation. 

In 2018, a former Villanovafootball player named Lawrence Livers sued the NCAA, arguing that he was employed both by the association and his university as soon as he stepped foot on the field wearing the Commodore jersey, and that the NCAA’s refusal to compensate was in violation of the minimum wage provision of the Fair Labor Standards Act. 

The NCAA hired the San Francisco-based Constangy, Brooks, Smith & Prophete firm to handle the dismissal. What it pulled out for precedent was a 1992 decision in Vanskike v. Peters, where the Seventh Circuit U.S. Court of Appeals cited the 13th Amendment in denying the defendant minimum wage for his work done in prison. Several months later, the judge rejected the NCAA’s motion to dismiss, but the message was already sent: the association will stoop to label its athletes as prison laborers to avoid paying them.  

Let’s digress for a moment. Last time, we talked about how the NCAA coined the term “student-athlete” to establish amateurism as a defense against compensation in the 20th century. Countless appeals and a billion-dollar empire later, the association now shoots for the Hail Mary of the slave labor amendment.

In Livers’s rebuttal to the NCAA’s dismissal motion, his lawyers noted how forced the legalistic confection was, but also how college athletes should be alarmed by what their governing body implies in its legal application. Using a 13th Amendment case means the association referred to its defendant as the loophole in the use of slave labor.

Lawyers’ jobs revolve around rhetoric. They must have known the implication of using Vanskike vs. Peters while representing an organization run on the backs of thousands of Black student-athletes. 

The thing is: This isn’t the first time the case has shown up in an NCAA defense. In 2016, the NCAA cited the case in Berger vs. NCAA to defend against the claim that student-athletes are employees. Even after public outrage over the association’s use of the precedent in 2018, they cited it again in 2019 under a new set of lawyers in Dawson v. NCAA dismissing an athlete’s claim to minimum wage and overtime pay. This means the implication of student-athletes as prison or loophole slave labor is a defense from the association itself — not just a backhanded attempt by lawyers to win for a client.

You could argue that this is evidence of an empire’s legal defense falling apart as the call for fair compensation becomes undeniable. I see that, but I argue this is getting at a much deeper issue within the association: its role in the country’s exploitation of Black people’s labor.

Activists have taken on the rhetoric of slave labor to focus on the lack of control Black student-athletes have in their lives. Even if athletes are playing their sport of choice on scholarship at the ultimate school of their choice, the analogy has exploded in the compensation discussion because it gets at the root of the problem of giving power and control of a person’s own labor to an outside entity. 

In a March 2014 essay titled “End the NCAA’s Plantation Economics,” civil rights icon Jesse Jackson directly draws a link between slave labor and the current structure of the NCAA. 

“Everyone gets paid in big-time college athletics except the players who actually risk their bodies to provide the show,” Jackson wrote.

The NCAA winces when directly addressed with this analogy — which carries hundreds of years of historical weight — but it really doesn’t have the grounds to do so. 

It is impossible to baulk at activists fighting for just compensation using historical slave labor rhetoric when the NCAA itself uses the legal loophole that allows mass unpaid labor to exist in this country. If the association wants to use the definition in its defense, it is fortifying itself as a racist structure. 

The prison labor justification for denying minimum wage to a voluntary athlete doesn’t make sense in a legal context, or even a common sense context. But in the historical context of maintaining control over thousands of athletes, the precedent fits right into the NCAA’s slimy hands. There is no new low the association could reach for, and now is the time for athletes to capitalize on their employer’s desperation. 

Taylor Mills is a sophomore writing about the NCAA. She is also a sports editor at the Daily Trojan. Her column, “The Boiling Point,” runs every other Friday.