Journal of Legal Aspects of Sport, 2019, 29, 30 – 85 doi: https://doi.org/10.18060/22893 © Kevin Brown and Antonio Williams Out of Bounds: A Critical Race Theory Perspective on ‘Pay for Play’ Kevin Brown and Antonio Williams* Under the amateur/education model, the amount of funding that colleges and universities can provide to their student-athletes is limited to the athletes’ cost of attending their institution. This model makes sense for most college sports, but National Collegiate Athletic Association (“NCAA”) Division I Football Bowl Subdivision and Division I men’s basketball tend to generate almost all the revenue to fund their institution’s entire athletic programs—as well as a substantial percentage of the revenues received by the NCAA. Furthermore is the realization that a majority of the elite athletes in these two revenue-generating sports are black. As revenues generated by these sports have escalated, a contentious debate has raged for more than 30 years about the potential racial exploitation of the application of the amateur/education model to these two sports. Both sides of this debate tend to perceive the issue of racial exploitation in terms of dividing the revenues between the athletes or the NCAA and its member institutions. Institutions either receive more of the funds to use as they see fit, or more revenues are provided to the athletes—probably at the expense of the amateur/education model. This article seeks to reformulate this debate by concentrating on the interests of the entire Black Community, not just those of elite black male athletes. By examining the Black Community’s perspective, potential solutions to the enduring dilemma of racial exploitation emerge. To counteract the charge that the amateur/education model is potentially racially exploitive, the NCAA and its member institutions might institute and fund massive programs that increase college attendance and graduation rates for the entire Black Community. Admittedly, these programs would necessarily be tailored in a manner that does not run afoul of the current interpretations of anti- discrimination laws, but that is possible. * Kevin Brown, JD, is the Richard S. Melvin Professor of Law at Indiana University; brownkd@ indiana.edu. Antonio Williams, PhD, is an associate professor in the School of Public Health at Indiana University. JLAS 29-1 ▪ 2019 31 I. Introduction Historically, what defined college sports were the twin principles of its identification with academic traditions and amateurism.1 In other words, the conventional view of the National Collegiate Athletic Association (“NCAA”) and its member institutions is that athletic programs are a vital part of an institution’s educational mission and their athletes are essential members of their student body. Further, amateurism holds that college athletes should not receive compensation beyond expenses related to attending college to play their sport. As the NCAA Constitution puts it, the participation of student-athletes: Should be motivated primarily by education and by the physical, mental and social benefits to be derived. Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.2 Professor Timothy Davis terms this view of college athletic programs the “amateur/education model.”3 It is here where the NCAA rules find their sig- nificance. Indeed, the primary purpose of the NCAA’s labyrinthine rules is to ensure that competition on the field is done on fair terms that are consistent with its member institutions’ shared commitment that athletes are both students and amateurs. If college sports is considered from the viewpoint of more than 460,000 student-athletes competing in the three divisions of the NCAA, then the am- ateur/education model makes sense.4 Since almost all of these athletes play in competitions that generate little or no revenue for their academic institutions, the primary beneficiaries of the competition are the participants. This reality is also reflected in the fact that only about 20 of the Division I athletic departments report a surplus when their entire athletic budgets are considered.5 However, 1 The NCAA’s Principle of Amateurism states: “Student-athletes shall be amateurs in an inter- collegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived. Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.” NCAA CONST. ART. 2.9. 2 NCAA CONST. ART. 2.9; see also 2015–16 NCAA DIVISION 1 ManUAL 3 (2015), http://www.ncaa- publications.com/productdownloads/D116.pdf. 3 Timothy Davis, Intercollegiate Athletics: Competing Models and Conflicting Realities, 25 Rutgers L.J. 269, 270 (1994). 4 Student Athletes, NCAA, http://www.ncaa.org/student-athletes (last visited Feb. 2, 2018). 5 The NCAA defines operating surplus in its biannual Revenues and Expenditures report to refer to generated revenues (including donations) minus operating costs, where operating costs exclude most capital expenses. See Daniel L. Fulks, REVENUES & EXPENSES: 2004–2014 NCAA DIVISION I INTERCOLLEGIATE ATHLETICS PROGRamS REPORT 11, 24 (2015), https://www.ncaa.org/sites/default/ files/2015%20Division%20I%20RE%20report.pdf [hereinafter NCAA, Revenues and Expenses 2015]. Based on these calculations, the NCAA noted, “A total of 24 athletics programs in the FBS reported positive net revenues for the 2014 fiscal year.” Id. at 8. 32 Brown, Williams separate from the participatory sports are those that generate huge revenues from the viewing public. Although there are variations at some educational in- stitutions, the primary revenue-generating college sports are NCAA Division I Football Bowl Subdivision (FBS football) and Division I men’s basketball (men’s basketball).6 For example, during the fiscal year of July 1, 2016, to June 30, 2017, at Indiana University-Bloomington, the men’s basketball and football teams gen- erated 98.2% of the allocated revenue from all sports teams.7 The net allocated revenue from football was $11,412,804 and men’s basketball was $11,705,810.8 All other sports combined reported a loss of $21,090,498.9 For colleges and uni- versities that field FBS football and men’s basketball teams, the net profit from these two sports provides a substantial portion of the athletic-related revenue that is used to cover the expenses of all the other sports programs.10 In other words, in addition to funding the expenses of the athletes in the revenue sports, the funds they generate pay for escalating coaching salaries in revenue sports, scholarships for non-revenue athletes, coaching expenses for non-revenue sports, increased costs of athletic department staff members, updated athletic facilities for all sports teams, luxury boxes at football and basketball stadiums for alumni, donors, and dignitaries, and subsidizing university budgets.11 Men’s basketball is also the primary source for the revenue received by the NCAA. It owns the marketing rights for the NCAA men’s basketball tournament, from which the 6 Although other sports generate significant revenues for certain colleges and universities, the two college sports that typically generate the largest revenues are FBS football and Division I men’s basketball. Throughout this article, mention of revenue sports refers only to these two sports. 7 Total allocated revenue was $63,524,353 of which $24,560,829 came from men’s basketball and $37,085,787 from football. U.S. DEPT. OF EDUcaTION, Indiana University–Bloomington, EQUITY IN ATHLETICS DATA AnaLYSIS, https://ope.ed.gov/athletics/#/institution/details (last visited Feb. 4, 2018). 8 For basketball the net income was $11,705,810 ($24,560,829–$12,855,019) and for football it was $11,412,804 ($37,085,787–$25,672,983). Id. 9 For sports other than men’s basketball and football, the total allocated net loss was $21,873,304 ($1,616,235–$23,489,539). Id. Thus, it could be asserted that the net profits from men’s basketball and football were used to provide the funds for all of the expenses of the other sports programs at Indiana University. 10 For example, in fiscal year 2010, the FBS football programs earned a median of $3.1 million more than revenue for the team. Division I men’s basketball teams produced a median profit of $788,000. But the medians for all other sports were net losses. See, e.g., Ahmed E. Taha, Are Col- lege Athletes Economically Exploited? 2 WAKE FOREST J. L. & POL’Y 69, 72 (2012); see also KNIGHT COmmISSION ON INTERCOLLEGIATE ATHLETICS, COLLEGE SPORTS 101, CHAPTER 3: REVENUE (2009), http://www.knightcommission.org/collegesports101/chapter-3. 11 For instance, a 2015 press release announcing the dedication of Indiana University-Bloom- ington’s new Global and International Studies Building stated that the “new $53 million building was funded entirely through university sources with half of the funding coming from IU’s Big Ten Network revenues, representing the largest-ever commitment from IU Athletics revenue to support the core academic mission of the university.” Press Release, IU to Dedicate Its New Glob- al and International Studies Building, IU NEWSROOM, http://archive.news.indiana.edu/releases/ iu/2015/09/global-and-international-studies-building.shtml (Sept. 25, 2015). JLAS 29-1 ▪ 2019 33 NCAA derives a substantial percentage of its operating funds. In fiscal year 2014, for example, the NCAA’s total revenues exceeded $1 billion with the majority of those revenues, about $700 million, coming from television and marketing agreements with CBS and Turner Broadcasting for the NCAA Tournament.12 Viewing the amateur/education model from the perspective of all athletes playing at NCAA member institutions certainly makes sense. However, whether the model (specifically the principal of amateurism) should apply to the athletes in revenue sports is a different matter.