Furthering what its executive director Ramogi Huma calls a “kitchen-sink strategy” for pushing pay-to-play, the National College Players Association has filed a discrimination complaint with the Office for Civil Rights (OCR) at the Department of Education, accusing the NCAA’s 350 Division I members of specifically discriminating against black students by colluding to put caps on athlete compensation.
Citing demographic analyses by the Center for American Progress and University of Southern California Race and Equity Center, the athlete advocacy group argues that since black athletes make up significantly higher proportions of college students at D-I schools, the earning restrictions placed on all college athletes have had a disparate impact on a protected minority group.
“While compensation restriction has the appearance of being administered on an equal basis it is not…in part because of the emphasis on recruiting Black athletes not Black degree seekers by a majority of the schools in the FBS Football and Division I men’s and women’s basketball programs,” the complaint states, according to a replica version provided by the NCPA.
The complaint comes less than two months after the NCPA filed an unfair labor practice charge against the NCAA, Pac-12 conference, UCLA and USC, claiming that the parties had unlawfully misclassified athletes as non-employees, thus depriving them of their workers’ rights under the National Labor Relations Act.
To be clear, the complaint is not a court filing. It is a request of OCR, an office within a federal administrative agency, to investigate and potentially mediate allegations of racist acts. OCR will review the complaint, with an initial focus on whether it is timely, sufficiently clear in explaining a legal violation, not preempted by other agency decisions and not overly duplicative of allegations against those 350 schools in state or federal court.
If the complaint advances past that initial threshold, OCR will launch an investigation that could last months or longer and involve different methods of fact-finding. OCR might conduct interviews with Huma and university officials and review written materials shared by the NCPA and schools. If OCR finds a violation of law, it will attempt to secure a voluntary resolution agreement by the schools. If those efforts fail, OCR could refer the case to the Department of Justice, which could launch litigation, or move to defer federal financial assistance to the schools.
In an interview, Huma says his organization’s next objective is to push new legislation in California—the state that passed and signed into law the first name, image and likeness bill, with the NCPA’s active involvement—that would allow schools to compensate their athletes for their on-the-field efforts.
The NCPA was instrumental in organizing the 2013 class-action antitrust lawsuit, Alston v. NCAA, challenging restrictions on educational-related benefits. Last June, the Supreme Court unanimously ruled in favor of the athletes in the case, with Justice Brett Kavanaugh going even further in a concurring opinion that raised the specter of systematic racism within major college sports.
“[T[he NCAA and its member collects are suppressing the pay of student athletes who collective generate billions of dollars in revenues for colleges ever year,” wrote Kavanaugh. “But the student athletes who generate the revenues, many of whom are African American and from lower-income backgrounds, end up with little or nothing.”
Huma says that while his organization has previously prioritized legislative, judicial and public awareness strategies, “the reality is there are [federal] agencies who have power to enforce existing laws” that could help abolish amateurism.
One challenge for the NCPA and other groups seeking reform is that no path, short of the NCAA voluntarily changing its rules, will be easy or fast. For instance, if the OCR finds a violation and seeks a voluntary resolution agreement with the schools, it’s difficult to foresee a resolution that would allow schools to satisfy their contractual obligations as members of the NCAA. A resolution that involves paying athletes for their labor directly would be in direct conflict of membership rules.